United States v. Underwood
| Decision Date | 08 June 1972 |
| Docket Number | Civ. No. 70-389. |
| Parties | UNITED STATES of America, Plaintiff, v. John R. UNDERWOOD et al., Defendants. |
| Court | U.S. District Court — Middle District of Florida |
John L. Briggs, U. S. Atty., by Oscar Blasingame, Asst. U. S. Atty., M.D.Fla., Tampa, Fla., for plaintiff.
Charles F. Clark, of Macfarlane, Ferguson, Allison & Kelly, Tampa, Fla., for defendants.
INTERLOCUTORY SUMMARY JUDGMENT
The United States filed a complaint alleging that the defendants, John R. Underwood, W. G. Underwood and R. W. Underwood, Jr., have or caused to have the bottom and shorelines of the Weeki Wachee River excavated and dredged during the years 1967 and 1968 without a permit as required by Title 33, United States Code, Section 403.
The government seeks inter alia, relief in the form of an order compelling the defendants to restore the bed and shoreline of the river to their original condition or in the alternative, damages equal to the cost of such restoration.
The defendants filed an answer. Depositions were taken of the defendants and personnel from the Corps of Engineers.
The government then sought by motion a summary judgment under Rule 56(c), F.R.Civ.P., declaring the defendants liable for the injuries resulting from the unlawful excavation and dredging of the river. Both sides have filed memoranda and affidavits in support of their positions on the motion. The Court has considered the depositions and affidavits. Hearing was held on May 17, 1972, and argument of counsel was heard.
The Weeki Wachee River is located in Hernando County, Florida. The source of the River is at Weeki Wachee Springs adjacent to United States Highway 19. The river runs for approximately 7 miles and empties into the Gulf of Mexico. Historically small personal boats have traveled the length of the river for purposes of fishing and enjoyment of the natural beauty of the river and surrounding area.
On page 39 of the deposition of John R. Underwood, the following was recorded:
"Q. Well, let me stop and ask you a couple of questions about the river. Had you been on the river by boat at a time before the excavation?
A. Yes, sir.
Q. How far up the river had you gone?
A. From one end to the other.
Q. All the way up to their dam.
A. Yes, sir. Way up and beyond their dam.
Q. In other words, you could go through the dam on up to the springs?
A. Yes, sir.
Q. And then, therefore, it was possible to go by boat from the springs to the gulf. Is that correct?
A. Yes, sir."
Also, see the deposition of William G. Underwood, beginning on page 5.
"Q. And like your brothers, you have observed the river for many years?
A. Well, its been quite a few years. I use to when I was younger, go up and down the river, but for the last 15 or 20 years I haven't been on the river much.
Q. Just for information, I am sure as a young fellow you weren't blessed with an outboard motor. Was it possible to maneuver up that river without an outboard?
A. Sir, I never went up it, I always went down it.
Q. You got in and went down?
A. Yes, sir, and then I had somebody take the truck down and pick me up at the other end of it. I have never tried to go up it.
Q. Well, do you know if it were possible to go against the current up stream in the row boat?
A. People have done it. Yes, sir."
The affidavit of Eugene E. Butler states:
At the source of the river there is a commercial tourist attraction known as Weeki Wachee Springs. The court takes judicial notice that tourism is one of the largest commercial interests and revenue sources for the State of Florida. Tourists travel to Florida from other states and foreign nations for the purpose of enjoying the weather and beauty of Florida. As John R. Underwood states at p. 43 of his deposition, twenty to fifty big boats with hundred horsepower motors travel from the Spring up and down the river every day.
The water level of the river is affected to some extent by the ebb and flow of the tide in the Gulf of Mexico.
The Court takes judicial notice that Weeki Wachee River connects with the Gulf of Mexico and thereby forms a public highway thereto.
From the pleadings and depositions it appears undisputed that the defendants acquired a parcel of land on the northside of the river in the 1950's. The defendants planned and developed this property and divided the area into small lots to be sold as weekend sites and known as Weeki Wachee Retreats.
The defendants contracted with Charles Sasser for the removal of material from the bed and shorelines of the river adjacent to Weeki Wachee River. The plan was that the elevation of the Underwood property would be raised to equal that of the approximate elevation of the developments downstream. The excavation was performed with the knowledge and supervision of one or more of the defendants.
The excavation was accomplished by a dragline sitting on the edge of the river and removing material from the bed of the river and the shoreline. The material consisted of grass and dirt. This was placed on the shore.
In addition to the alteration of the river, a series of canals were dug. The canals were connected to the river and access to the river was provided by Big Cypress Canal.
The defendants admit that they never had the recommendation of the Chief of Engineers nor the authority of the Secretary of the Army as required by Title 33, United States Code, Section 403. Application was made for an "after the fact" permit. The permit was denied.
The government contends that the acts alleged in the complaint lowered the water level of the river and thereby interfered with navigation. The government further alleges that the operations destroyed vegetation and injured the ecology and hydrology of the river and adjacent areas.
The affidavit of William F. Newhall, Professor of Biochemistry at the University of Florida, states that after he observed a dragline operating at Weeki Wachee Retreats and after the canals were opened into the river the level of the water dropped about 28" in a few days.
Dr. Newhall further states:
In his affidavit, Mann G. Davis, III, a hydraulic engineer with the Corps of Engineers, states in part:
The power of the federal government over navigable waters stems from the commerce clause of the United States Constitution, Article I, Section 8. Historically federal legislation and regulation, and the jurisdiction of the federal courts, has been concerned with matters of admiralty, navigation and water as a source of electric power.
The regulation in the present case is the Rivers and Harbors Act of 1899, Title 33, United States Code, Section 401 et seq. Under this Act, the Corps of Engineers has been delegated certain duties and authority to regulate and permit operations in navigable waters.
Thus:
It is clear that it is necessary to obtain a permit from the Corps of Engineers under existing law and regulations before submerged land may lawfully be filled, excavated, channeled and other similar activities performed thereon such as contemplated here, if the area is navigable, or if the proposed work would affect nearby navigable waters. Tatum v. Blackstock, 319 F.2d 397 (5th Cir. 1963)
With the growing public interest in protecting our natural resources, Congress passed the Fish and Wildlife Coordination Act of 1958, Title 16, United States Code, Section 661 et seq. and the National Environmental Policy Act of 1969, Title 42, United States Code, Section 4331 et seq. The Fifth Circuit Court of Appeals then added new scope to the authority of the Corps of Engineers under the Rivers and Harbors Act and said as to permits:
"The establishment was entitled, if not required, to consider ecological factors and, being persuaded by them, to deny that which might have been granted routinely five, ten, or fifteen years ago . . ." Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert. den. 401 U.S. 910, 91 S.Ct. 873, 27 L.Ed. 2d 808.
With the commerce clause as its source, the river of judicial interpretation has followed a winding course from the mouth of which has emerged a flood of tests for determining the navigability of bodies of water. Many of the criteria do not appear to be sufficient alone but may be useful when combined with others.
The basic test of navigability is that stated in The Daniel Ball, 77 U.S. 557, 10 Wall. 557, 563, 19 L.Ed. 999 (1870):
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