Petition — Diamond v. United States

! AUG 8

n. 80-19@! ie:

MICHAEL RODAK, dR, CLE

«l

Iu the Supreme Court of the United States

October Term, 1980

HERMAN DIAMOND, Petitioner,

Vv.

UNITED STATES OF AMERICA AND

ET AL. Respondent,

v.

UNITED STATES OF AMERICA and

UNITED STATES ARMY CORPS OF

ENGINEERS, Savannah, Ga., Respondent,

Vv.

Dr. FREDRICK C. MARLAND,

State of Georgia, ET AL,

Respondent,

PETITION FOR CERTIORARI TO THE COURT

OF APPEALS FOR THE FIFTH CIRCUIT

HERMAN DIAMOND, pro se

3610 Macceo Dr.

Savannah, Ga. 31410

QUESTIONS PRESENTED

The questions presented are:

1

Has the Court of Appeals, Fifth Cir-

cuit, decided an important question

of Federal Law in conflict with

applicable State laws and Compact

between the Federal Government and

the State of Georgia in a way that

should be settled by this Court.

Petitioner's State and Constitutional

Rights and Immunities have been vio-

lated pursuant to Articles 4,5, 6,

10, and 14 and the 1802 Compact, are

in Conflict with applicable decisions

of this Court, in Oregon v. Corvallis

Sand and Gravel Co., 50 L.Ed. 2d 550,

97. Set... Ci39772.

Have the Lower Courts departed from

accepted and usual course of Judicial

proceedings, so as to call for the

exercise of this Honorable Court's

Power of Supervision, where the Dis-

trict Court refused to recuse and

denied Petitioner his right's to a

fair trial without Bias and Preju-

dice, pursuant to 28 U.S.C.§144; and

continue to hear the three cases over

objections of Petitioner.

Has the Lower Court departed from

accepted and usual course of Judicial

Proceedings so as to call for this

Court's Power of Supervision, when

a U.S. Assistant District Attorney,

Mr. Lamar Walters, of the Southern

District of Georgia files his own

personal, unsworn Civil Complaint,

CA 3092, without Statutory provisions

of law; abused his power of office,

and personally prosecute Petitioner

for an assumed violation of a Federal

statues; and, instigated Federal and

State employees to testify without the

power of subpoena to secure a fraudu-

lent permanent injunction over Peti-

tioner's property in violation of

Articles 4,5,6,7, and 14, and without

a jury, trial as guaranteed by the

Article 7 of the Constitution, with

intent to harm and damage Petitioner,

United States v. Cohen, 38 (App.D.C.

123 (1912).

Has the Court of Appeals, Fifth Cir-

cuit, departed from accepted and usual

course of Judicial procedure, so as

to call for the exercise of this Hon-

orable Court's Supervision.

The Court of Appeals has affirmed all

three causes of action based on a

vacated Judgment in U.S. v. Diamond,

512 F.2d.157, Cert. denied, 422

U.S. 928 (1975); WHEREAS, as by con-

solidation, a new cause of action

requires a new verdict and Judgment,

WHEREAS, in Case No. CA 3092, no new

Judgment was ordered, the Court of

Appeals has no jurisdiction to re-

instate the old judgment in all three

Causes of Actions -

Mutual Life Insurance Co. v.

Hillmon, 145 U.S. 709, 710

36 L. Ed.2d. (1891)

[Headnote at 293, 294]

TABLE OF CONTENTS

PAGE

QUESTIOS PRESENTED,....+.eeeeeeee+ FRONT

STATUES INVOLVED coe cere erecece 2

STATEMENT OF THE CASE ....cccccee 2

ARGUMENT errr ee ee ee ee ee 8

JURISDICTION wcccccccccscccccccvcces 2

THE WRIT SHOULD ISSUE '.....cccccrsrctda

APPENDIX

ORDER OF THE DISTRICT COURT

JUDGMENT IN CV 475-221 ......... 9,10a

DENIAL OF MOTIONS, CA 3092 .....10a,lla

ORDER OF CONSOLIDATION......... 8a

COMPLAINT... ccccccccccccccccceee 48-78

' '

1602 COMPACT. civasceteecrerss cs -la~QA

JUDGMENT IN CV 477-80 ....-50e- 12a

GEORGIA STATE CONSTITUTION RIPARIAN

RIGHTS l4a

CODE OF FEDERAL REG.33 CFR209260

1973.) TOTEPEETEeE Eee eee Fe 13a

GA. STATE LAWS .ccccccccccseccesdaa~ioa

COURT OF APPEALS,OPINIONS ......16a-18a

ARTICLES 4 and 6 pertaining to

1802 COMPACT... .ccccccccccvcves 19a

VACATED JUDGMENT, 1974 ........ 20a-2la

eva.

TABLE OF AUTHORITIES

Brady v. Maryland, 22 AL R 556...

Cherokee Nation v.

PAGE

17

The State of G&a,.

8 L Ed 475, 5 Peter 106 US 41... 19

Crow Pope Land Entrprise v. US ..

474 F 2d 200.. 11547

Cohen v. U.S. 38 App DC. 123 ... 19

Hazel Atlas Glass Co v. Hartford

Empire Co. 322 U.S. 246,248, 88 L Ed

1265 eens e eeeee##@ 7 e*eeee#see#*e#*es¢ 17

Johnson v. Manhattan Ry Co.

203:°0:-6 4723. 87 BeBe S832. cv sas 13

Kenyon v. Knife, 46 Fed.313 ....

Mississippi v. Johnson,18 L Ed 475

ta: 8. BO Ose kx ne ee

Mutual Life Insurance Co v Hillmon

145 U S 709,710, 36 L Ed 2d (1891)..13

OREGON v.CORVALLIS SAND AND GRAVEL

C,. 30 - & Ba sae, 37 S Ck. CaF las. aes

Phillips v. Crown Central Pet.Corp.

S56: F:.26. 708° & én 17

Shively v. Bowley, 152 U S 33 ies

Sitton v. U.S , 413 F 2d 1386 ain ee

NDCR v. CALLAWAY, et al.

392 F. Supp 685 oeeeeneeveee .13,19

U.S. v. Diamond, 512 F 2d 157 .. 4,727,141

U.S. v. Kane, 602 F 2d 490,494 .. 17

U.S. v. Morin (DC Ind.) Fed.15,654.. 18

U.S. v.. Moss-American, 78 FRD 214, 17

ii

PAGE

U.S v. Property on Pinto Is. 18

74 F. Supp 92,93.

U.S. v. ST-Regis Paper Co. 355 F.2d

688,689, coe 8

U.S. v. Toscanino, 500:-F 24 267, ..- 17

74 AM JUR 2d TORTS § 37 cov (a9

TREATIES and COMPACTS

1802 COMPACT, Federal Government

with the State of Georgia la,9,19

American State Paper,Public Lands,Gale &

Seaton, (1832) (p.125)

LAWS OF GEORGIA

Marshland Act of 1970, eee 3

Constution of Ga, Riparian Rights, lé@a

Ga. Code Ann.

15-101,201, 18a

70-401, 15a

85-1308 l3a

85-1402,1406,1409, 15a

105-1401, 15a

85-1310 l4a

iii

FEDERAL STATUES _—

28 USC S§ 144.. 5,10

26:0 S-c $:4331°... 5

28 US C § 1343 (3) | 5

28 USC § 1345 4,18

28 USC § 1652 13

5uscg§ 552 5,14,16

5 usc § 556 5

33 usc §l 9,13a

33 USC § 403,407, 3,4,9,18

42 USC § 1983 5

42 USC § 1985 (3) 5

33 C F R § 209260 (k) (1) (ii) 9,16,13a

5 US C § 702-706 4

FEDERAL RULES OF CIVIL

PROCEDURE

RULE NO.

34 5,15

38 8

41 (2) 8

42 (a) 4,11,20

60 (b) 5,14,16

ARTICLES OF THE CONSTITUTION

4,5,6,7,10,14

IN THE

Supreme Court of the United States

October Term, 1980

HERMAN DIAMOND, Petitioner

versus

No. 78-2969 - United States of America

and U. S. Army Corps of Engineers,

Savannah Division, ET AL,

Respondent.

No. 79-2942 - HERMAN DIAMOND, Petitioner

versus

Dr. Fredrick Marland,Colonel Edwin

Kaiser,Colonel Frank Walter,Stevan

Osvold,William W.Young,Edward Myatt

Glenn F. MaCauley.,et al. Respondent.

PETITION ON WRIT OF CERTIORARI TO THE COURT

OF APPEALS FOR THE FIFTH CIRCUIT

4

Petitioner seeks certiorari to re-

view a judgment of the Court of Appeals

for the Fifth Circuit and in support of

its petition respectfully shows:

OPINION BELOW AND JURISDICTION

The three Cases, CA 3092 - CV 475-221

and CV-477-80, being interrelated was tried

before the late Honorable Judge Alexander A.

Lawrence, United States District Court,

Southern District of Georgia, who entered

his Order, to deny all motions in CA 3092,

2

and CV 475--221 9nN August 2, 1978,also

issued a Judgment for the Army Corps of

Engineers on August 2, 1978. In CV-

477-80, Summary Judgment was issued on

July 20, 1979. :

The Court of Appeals Fifth Circuit

rendered its opinion in all three cases

April 28, 1980; per curuim (Not to Be

Published), and on rehearing by Govern-

ment Petition, rearranged the wording to

issue a new opinion on June 24, 1980;

WHEREAS, Petitioner's motion for rehear-

ing was denied May 23, 1980.

Jurisdiction 28 U.S.C. 1254(1)

STATUE'S INVOLVED

28 U.S.C. §1345, 28 U.S.C.§ 1331,

28 Vee § 1343(3), 42 U.S.C. §1983,

42 U.S.C. §1985(3), 33 U.S.C. $403; 407‘ 4

STATEMENT OF CASE

Petitioner Herman Diamond of Savannah,

Georgia, owner of Lot 50, Riverside Sub-

division, having 100 foot frontage on the

Road, with a depth of 225 feet to the

Banks of Richardson Creek, and Warranty

Deed to the lower water mark - exactly

one-half acre of High Ground.

In June, 1965, Petitioner applied

for and received a Corps permit to build

a dock and 40 ft. walkway over the Banks

3

to the High Ground, where in 1966, a deep

well and electrical service was supplied.

Petitioner, in 1966, then applied

for a dockhouse and a bulkhead and fill to

protect the dock and dockhouse. Col.

Ramee, District Engineer and Chief of

Permits Mr. Blitch, informed Petitioner

that a permit weS& not required and to go

ahead.he was coVered,. On April 4, 1973,

while Petitioner was burying the burnt

debris from repairing his dockhouse and

dock, which was destroyed by fire in Jan-

uary of 1973. ‘

Dr. Fredrich Marland, of the Georgia

State Game and Fish Division, arrived and

accused Petitioner of filling the marsh

area adjoining Petitioner's property, be-

longing to Mr. Barrett, who had applied

for a permit from the Corps in June 1972.

and recieved the permit in May 4,1974.

Dr. Marland cursed, whereas, Petitioner

informed Dr. Marland his official status

was not to harrass and trespass on private

property without a warrant. This infuriated

Dr. Marland and he had Petitioner arrested

for a State Marshland Act of 1970, by two

County Police and the State Rangers, that

he had called by radio.

On arraignment at the County Court-

house, Mr. Lamar C. Walter, the U.S.

Assistant District Attorney was present

and made several remarks and the Judge

ordered him to leave, since he was not a

party to the arrest.

On April 5, 1973, the next day...

Mr. Lamar filed a Civil Complaint CA 3092,

for Federal violations of 33 U.S.C. §403,

and 407, Jurisdiction invoked - 28 U.S.C.

§1345, (App.4, 5, 6, 7(a), based on the

arrest of Petitioner for the State Marsh-

land Act. Petitioner demurred all charges.

On January 22, 1974, Petitioner

was tried in Superior Court and a jury

of 125: after visiting the site, found

Petitioner "NOT GUILTY" of the State

Marshland Act (Dx. #25, 8/24/77). Dr.

Marland testified that Diamond may have

pushed a wheelbarrow of dirt into the

adjoining marsh.

The District Court was informed by

personal interview with Petitioner.

On March 26, 1974, Permit was de-

nied and based on the denial the District

Court issued its Judgment (App. 20, 21(a)

on April 17, 1974.

U. S. v. Diamond, 512 F.2d.157,

Cert. Denied; 423 U.S. 928 - (5th Cir.

1975) (App. 20, 21(a); on August 28, 1975,

Petitioner filed a complaint against the

United States of America and the U.S.

Army Corps of Engineers, Civil Action

pursuant to 5-U.S.C. §702-706, for de-

nial of a permit to bulkhead and a small

fill area, alleging that Denial of his

permit was (a) arbitrary, (b) capricious,

(c) in excess of Corps' Statutory authority,

(ad) without jurisdiction.

On December 4, 1975, the District

Court ordered consolidation of CA 3092

and CV 475-221, pursuant to rule 42(a) of

the F.R.C.P. (app. 8a). In the Case of

Consolidation CA 3092, the State of

Georgia is not a party.

On April 13, 1976, Petitioner filed

a motion pursuant to rule 60(b) of the

F.R.C.P. (3) that the Court had no Juris-

diction; (4) Fraud; (6) and further relief

of the Court - Petitioner amended this

motion on June 2, 1976, and June 28, 1977.

On April 17, 1976, a hearing was

held to introduce evidence and to have

Colonel Kaiser, District Engineer of the

Corps, to testify, as he was being trans-

ferred overseas.

On April 17, 1977, Petitioner,

DIAMOND, filed a Civil Rights and Tort

Action against Defendants, DR. FREDRICH

MARLAND, STATE OF GEORGIA, ET AL, CV 477-

80, in Court of Appeals No. 79-2942, pur-

suant to 42 U.S.C. 1983 and 1985(3) and

28 U.S.C. 1331 and 1343(3) and Petitioner

filed several motions in the interum:

l. Motion for review of Rule 60B

(3) (4) (6) F.R.C.P.

2. Motion for an Agency hearing,

28 U.S.C.§556, et seg.

3. Rule 34, F.R.C.P. and a Freedom

of Information Act 28

U.8.C.§532.

4. Summary Judgment or Jury Trial.

5. District Engineer has no authori-

ty to deny permit.

6. Motion to rescuse Judge Alexan-

der A. Lawrence from presiding at the

trials, purusant to 28 U.S.C.§144.

On June ll, 1977, file for peti-

tion to the Corps of Engineers, Savannah

Division, pursuant to 5 U.S.C.§552 for

all copies of Petitioner Diamond's

records and correspondence pertaining to

his application for a Petition filed an

Oral Motion for damages of $500,000.00,

in CA 3092and CV 475-221 (T.8/24/77, p.36).

IN ALL, four hearings were held on

the following dates: August 4, 1977, as

to all cases CA 3092 and 475-221 and

CV 477-80.

Mr. Ralph Snow, Attorney for

Petitioner, in CV 477-80, was present

and requested the Court to consider the

application for disqualification of

recusal and the Court overruled the motion

(T.8/24/77 p. 3). Mr. Snow retired and

the cases procede in CA 3092 and CV 475-

221, Petitioner submitted several exhib-

its and evidence and the Government sub-

mitted an offer of 55 ft. of the property

to Diamond. The offer was refused

(T, 8/24/77 p.16-17) andthe Case was continu-

ed.

September 30, 1977 Hearing, neither

the Government nor the State of Georgia

was present. The Court agreed to a hear-

ing on January 3, 1978, WHEREAS, Peti-

tioner submitted a total of 28 exhibits

and evidence, accepted by the Court and

without objections of the Respondents.

On August 2, 1978, the Court issued

orders and Judgment denying all Petition-

er's motions in CA 3092 and CV 475-221

(App. 9, 10a) No Final Judgment issued,

in regards to CA 3092.

The Judgment for the U.S. and the Corps

of Engineers (App. 10(a) in CV 475-221.

On August 22, 1978, appeal was filed

with the Court of Appeals Fifth Circuit.

In CV 477-80, a hearing was held

on May 10, 1978. The Court admitted to

having vacated the Judgment and granted

a new trial in CA 3092 (t. p. 86) all

facets of conspiracy, fraud and perjury

were submitted to the Court.

The Court issued a summary Judg-

ment in CV 477-80 on Juty 20, 1979

(App. 12(a)

Notice of Appeal filed on July 20,

1979, Petitioner filed a motion to con-

solidate 78-2969 with 79-2942 for Oral

Argument scheduled for March 31, 1980.

Court of Appeals granted consolidation

February 6, 1980.

Petitioner filed request for one

(1) hour Oral Argument. Three (3) cases

cannot be argued in 20 minutes and to

show all the evidence Petition requested.

One hour Oral Argument was denied on

February 15, 1980. The Court of Appeals

on April 28, 1980 (App. 16, 17(a) affirnm-

ed all three (3) cases based on U.S. v.

Diamond, 512 F.2d.157. A vacated judgment.

The Court allowed the dock and

walkway of 40 feet to be repaired and

maintained under a previousiy authorized

permit (App. 16(a). Petitioner peti-

tioned for rehearing. The Court of

Appeals denied petitioner motion on

May 23, 1980.

On April 28, 1980, Respondent

U.S. Government, petitioned for rehearing

and clarification was issued (App. 18(a).

Petitioner filed motion for Stay

of Mandate on May 30, 1980. Petitioner

filed notice of Writ of Certiorari to

‘ the Court of Appeals, Fifth Circuit,

May 23, 1980.

On July 17, 1980, Petitioner filed

with the District Court motion to dis-

miss CA 3092 for lack of prosecution,

pursuant to F.R.C.P., Rule 41(2) or

local Rule 15, the Alternative demand for

jury trial, pursuant to F.R.C.P., Rule

38.

ARGUMENT

The right of the states to control

and regulate its traffic along the State

and federal hyways is unquestionable,

therefore waters within its boundries

muat be given that same right,whether it

be navigable or not, so long as it oper-

erates within it's own limits. It's waters

are its territory and domain as much as

the land and hyways within and equally

subject to it's laws in all respects with

in its own jurisdiction, that of a sover-

eign over its domain.

The right of Congress to regulate

commerce. The correct definition commerce

is the transportation and sale of of com-

modities and not to regulate the rights

of a states citizens to the use of their

land or Riparian rights as granted by

the states,. Congress has passed no laws

to deny these rights pursuant to

33 U.S.C.§ 1, (app 13 a) 33 U.S.C.§ 403

and other similar regulations are ambigious

and these permit regulations are interpreted

in many different ways by many. courts,.

The 33 C.F.R. 209260 (k) (1) (ii) Shore-

ward limit of jurisdiction, to the Mean

Average High Water, preferable over a

period of 18.6 years (app 13 a ) This

regulation in it's “élf is ambigious and

requires many interpretations in areas of

small rivers creeks and lakes within a

states sovereign boundries that violates

Article 10 of the U.S.Constitution and a

taking of private property without due

compensation, Art 5.

This Honorable Court has rendered it's

opinion in OREGON v.CORVALLIS SAND AND

GRAVEL CO. 50 L.ED 2d 550, 97 S.Ct 582

(1977) that State laws govern state owned

river beds within it's boundries,

Shively v. Bowley, 152 U.S. 33 and

Kenyon v. Knife 46 Fed 313 (app B)

Many States have made Compacts with

the federal government, such as the 1802

Compact with the State of Georgia. (app la)

published in Gale and Seaton 1832.

No.69 Cession of Georgia. page 125,126.

pursuant to Article 4, New States admitted

and Article 6, Constitution and Treaties.

as the Supreme law of the land, (app 19a)

and all Judges shall be bound thereby.

The State of Georgia has riparian

rights. State Constitution Art 1 sec 6

para.l (app 14 a)

10

THIS HONORABLE COURT, must in all

fairness to the state sovereignty and it's

citizens render it's opinion and set to

rest all court issues and Federal Agency

regulation that violate Article 4 and 6

and deny equal protection under the law P

to the citizens, by declaring, State

Riparian Rights are determined by STATE

LAW.

2. Pursuant to Title 28 U.S.C.§ 144,

petitioner filed timely affidavits to

recuse the Late Honorable Judge Alexander

Lawrence to disqualify himself from the

cases, On two occassions he overruled

from the bench, As he stated in a hearing

held August 24,1977, ' I did once and l

will do it again.' (T. p.2.3) Objections

and exceptions are taken to the ruling.

The Court also accused petitioner of

being a 'Chronic Litigator and his statement

was released to the news and the papers

mace a big splash of petitioner and held

him up to ridicule. (R.p. 92)

The Honorable Judge Lawrence wrote

and published many stories about marshes,

and protective in that repect.

When Judge Lawrence retired,The U.S.

Attorney General, The Honorable Griffen

Bell; sponsored a banquiet honoring his

services as Judge.

The local papers gave a resume, and

gave a history of their services.The Att-

General was a retired Appellate Court Judge

of the Fifth Circuit and his son, Griffen

Bell Jr. was Judge Lawrence's law clerk

ll

for 2 1/2 years, This would he a violat-

of Judicial Ethics, personal interest.

Judge Griffin Bell was the presid-

ing judge in the Court of Appeal in

petioners Case. U.S. v. Diamond 512 F.

2d 157. The statement, That petioners

property would have been inundated had

it not been filled by comparing the marsh-

lands adjoining property,when no evidence

was submitted to show any fill was placed

below the Mean High Tides , .an assumption

speculative at the best and quite erron=

ious pursuant to F.R.CP. Rule 52 (a).

Crow Pope Land Inc v. U.S,474 F 2d 200

NXDC v. CALLAWY,392 F Supp 686.687.

2. Navigable Waters (key 35)

Secretary of the Army and the Chief

of the Army Corps of Engineers are

without authority to amend or change

statutory definition of navigable water

as used in the Water Act.etc.

[2] have acted unlawfully in adopting

the definition of navigable waters in

33 CFR 209260.

1. Revoke and recind much of Federal

Register 39 (April 3,1974.etc.

Complaint refers to marshlands ad-

joing navigable waters, para.3, (app4a)

3. The District Court upon motion from

the Government ordered a new trial by

Consolidation with CV 475-221, pursuant to

F.R.C.P. Rule 42 (a) on December 4,1975.

The Government, Attorney Mr.Lamar Walter

12

the complaintee,was replaced by Mr.

Edward Booth Jr. The lower court in Savanneh

and Chief Justice Judge Brown of the Fifth

Circuit had reprimanded Mr. Lamar Walters

for prosicutional misconduct .He is no longer

with the U.S. Justice Department.

The three cases were heard on four

hearings, August 24,1977, September 30,

1977, January 3,1978 and May 10,1979.

The District Court rendered his orders

on August 2,1978 in Ca 3092 and CV 475-221.

Denied all motions of petitinor in

‘CA 3092 and CV 475-221. (app 10,11la)

NO FINAL JUDGMENT ISSUED.

Issued a judgment for CV 475-221 in

U.S. and Corps of Engineers. (app 9,10a)

Summary Judgment was issued in July 20,1979

in CV 477-80. (app 12a)

The petitioner appealed all cases

and were heard on oral argument as of

March 30,1980, whereas petitioner

appealed the Court of Appeal affirmation

subject to modification and removed the

dock and walkway from a judgment that had

been vacated and no final judgment was

re-issued, Petitioner requested

a rehearing and clarification,denied,April

28,1980,

The Government requested a rehearing

and the Court of appeals changed the words

to again reinstate the old vacated judg-

ment on May 23,1980, (app 17,18a)Petitioner

ia

requested a rehearing, Clarification

and recall of mandate, Petitioner had

requested to withold mandate, as CA 3092

was in the District Court and —

petitioner had petitioned for a dismissal

or a jury trial, on June 17,1980.

The mandate denies petitioner due

process and equal protection and where

they have no jurisdiction where no final

appealable Judgment was issued.

Consolidation of the cases requires

a new judgment for each case and each

case retains its own rights.

Johnson v.Manhattan Ry Co. 289 US

479, 77 L ed 1332 [Courts,586-4]

Mutual Life Insurance Co. v. Hillmon

145 U S 709,710 36 L ED 2d (1891) stated,

Although the defendants might lawfully

be compelled at the discretion of the court

to try the cases together, the causes of

action remain distinct, and no defendant

could be deprived without consent of any

rights, material to his defense whether by

of challenges of jurors objection to evid-

ence, which would have been entitled ifthe

cases had been tried seperately (app B rh)

The District Court stated in hearing

May 10, 1979, that he had granted a new

trial and vacated the judgment, (T.p.86)

28 USC § 1652, State laws as rules

of decisions, GA. Code 70-401 (app 15a)

14

The district court denied all of pet-

itioner's motions for , F.R.C.P. Rule

60 (b) 3,4,6, That the Court had no

jurisdiction over petitioner or his pro-

perty, FRAUD, that the evendence was

fraudulently obtained and that what relief

the court could grant.

Petitioner for Rule 34 and the Free-

dom of Information Act 5 US C § 552,

Demanded a jury trial or summary

judgment.

Requested Jurisdictional Survey as

to Army Corps of Engineers Authority.

Petitioned for Recusal of the Judge.

All motions denied August 2 1978

(app 10,11 a) 2 years after consolidation

in CA 3092 and CV 475-221.

These denial violates petitioners

rights to due process and Equal protection

and right to a jury trial, pursuant to

Article 4,5, and 7,14 of the Constitution.

The State of Georgia had intervened

in the old case, but upon consolidation

had not petioned to Intervene, as the

states case in the Arrest of petitioner

Diamond by Dr Marland was adjudicated in

the States Superior Court of Chatham County

on January 22, 1974, by a jury of 12 and

found 'NOT GUILTY for filling any marsh

area as charged, April 4,1973, wheras the

District Court was made aware of the verdict

before he ordered his judgment on April 17

1974,

15

The States case was Resi Juda Cata

Sitton v. United States 413 F 2d 1386

(5 cir) and the State has no jurisdict-

ion in federal courts when there was no

appeal in the states higher courts.

The hearings were held, and

submitted several exhibits August 24,1977

on September 30 ,1977 Hearings the state

and Government made ro appearance, The

court allowed for another hearing on Jan-

uary 3,1978, when a total of 28 exhibits

were admitted without any objection by

the government.

Most of the exhibits were copies of

the records held by the Engineers and they

clearly indicated that perjury and fraud

and conspiracy did prevail and obvious

why they were relunctent to issue these

copies, and further copies were supplied

but to late to submit to the court.

IF THIS HONORABLE COURT WILL REVIEW

THE FOUR SHORT TRANSCRIPTS WHERE ALL THE

EXHIBITS WERE EXPLAINED IN DETAIL AND

CITATION WITH REVIEW OF THE EXHIBITS THIS

WILL ESTABLISH FULL PROOF THAT PETITIONER

HAS SUFFICIENT PROOF TO GRANT A JURY TRIAL

The April 17,1976 hearing where only

the District Engineer Colonel Kaiser was

allowed to testify,as he was being sent

overseas,

His testimony was that no survey

was made as to jurisdiction (T pl15,16)

and he had not made any survey as to meet

16

jurisdictional requirements for the

requirement of a permit, pursuant to

33 C.F.R. 209260 (k) (1) (ii) (app 13a)

as to the mean High tides over a period

of 18.6 years, (T p.15-18)

That the topo and survey used as

evidence in the original case, was not

placed in the right position to show the

true position of the property of petit-

tioner. The property was show as being in

the marsh area of Mr. Barretts lot. (T.pp

19-24) He also verified that he had not

been show petitioners registered survey

that verified the testimony of the two

witnesses that the property was high fast

land and sandy soil.

The Colonel Kaiser's testimony along

with the evidence obtained in the copies

of petitioners records from the F.O.I,A,

5 U.S.C.§ 552 from the engineers that

Mr Young who testified as to Jurisdiction

Tidal elevations ,there were no records of

reports as required to show that he had

been where he said he was and no report

as to tidal records of Richardson Creek.

as verified by Colonel Kaiser's testimony.

Colonel Kaiser, further stated that cert-

ain jurisdictional facts were witheld from

petitioner. (T. p 6 - 4/17/76)

F.R.C.P. Rule 60 (b) (3) (4) (6) is well

substanciated by the testimony and exhibits.

The photo taken by Dr. Marland of the

marshland adjoining the property taken on

June 28,1973, whereas the tidal information

was reported at 7.1 feet, was verified by

the U.S.Departmrnt of Commerce as being 8.9

feet,well above Jurisdictional regulations.

lee

ad

17

The lower court would not allow

petitioner to recall the witneses in the

new trial, whereas the Government witness

Colonel Kaiser was allowed to testify on

behalf of the U.S.Army Corps of Engineers.

Denial of due process requires the Court to

divest itself of jurisdiction over the

person of a defendant where such jurisdic-

tion has been acquired as a result of gov-

ernments deliberate, unnecessary and unr-

easonable invasion accused's constitution-

al rights.

U.S. v. Toscanino, 500 F 2d 267,

rehearing denied, 504 F 2d 1380 on remand.

Supression of evidence, Brady v. Maryland

22 ALR Fed. 556

Phiilips v. Crown Central Petroleum

Corp, 556 F 2d 702, injunction vacated

U. S. v. Moss-American, Inc.

78 F.R.D. 214. case dismissed.

U.S. v. Kane, 602 F2d 490-494

Fraud and states rights

Hazel-Atlass Glass Co. v. Hartford-

Empire Co, 322 U S 246,248, 88 L Ed

1265.°

United States v. Property on Pinto Is.

74 F. Supp 92,93

Navigable Waters, 42 (1).

Riparian Rights of owners of Marsh Is.

bounded by mobile Bay were governed

by state law.

Crow, Pope, and Land Enterprise,v.U S

474 F.2d 200

18

405 (12.23) impermissable conclusion of

law based on total absence of evidence.

Civil Complaint 3092, was consolidated

by order of the Court, as of December 4,

1975, Thereby vacating the old Permenant

Injunction, and a new verdict or judgment

must issue, No Judgment has been issued

and the case is still pending in the lower

court, the Judge of the District Court

(T. p. 86- 5/10/79) the judgment I made

and set aside, is JUDICIAL NOTICE.

The Civil¢gomplaint was filed by Mr.Lamar

Walter, U.S. Assistant District Attorney

for the Southern District of Georgia, on

April 5,1973, (app 4-7a) for a criminal

violation, of 33 U.S.C.§ 403,407. $500

dollars fine or 6 months in jail. Mr.

Walters filed the complaint in the name

of the United States government jurisdic-

tion invoked 28 U.S.C§1345, Except as

otherwise provided by law:

seeking a permenant injunction and

damages, Petioner demurred and filed a

cross complaint for damages..

Mr. Walters, prosecuted his own complaint.

The personal unsworn complaint with-

out affidavit; violates Art. 4 of the Cons-

tution, as to search and siezures, and

without statutory authority of law and

without jurisdiction,

United States v. St Regis Paper Co.

355 F 2d 688,689. Except as otherwise

provided by law, the complaint has no

jurisdiction. U.S. v. Morin(DC Ind) 1866.

Federal Case No. 15,654, No injunction

19

shall issue which had not been adjudicated.

Cohen v. U.S. v. 38 App.DC 123.

no affidavit, no jurisdiction.

74 AM JUR 2d. TORTS § 37 unauthorized

prosecution in the name of another. (ARB)

Since December 4,1975, the compl-

aintee has since left the Federal Gover-

nments service, and The Government has

not submitted any evidence or testimony

to prosecute the petitioner, and as June

17,1980 Petitioner has filed a motion to

dismiss or a jury trial.

The Secretary of the Army, has publ-

ished in the Federal Register as of 25

July 1975, Final regulations with an or-

der of the U.S.District Court for the

District of Columbia issued on March 27,

1975 in NRDC v. CALLAWAY, et al. 392 F,

Supp 686, All_fill was grandfathered.

This is part of the information witheld.

Therefore this complaint becomes,Void,

EXPOST FACTO. and should be dismissed.

The 1802 Compact between the Federal

Government and the State of Georgia takes

jurisdiction over the complaint and grant

immunity to Petitioner. MISSISSIPPI v.

JOHNSON,18 L Ed 475,71 U S 439, These agr-

eements are Irrevocable and Unalterable.

CHEROKEE NATIONS v. THE STATE OF GEORGIA

8 L Ed 2d Peter 5 106 US 41.

The 1802 Compact grants Georgia it's full

Sovereignty.

4.Court of Appeals has affirmed all three

cases,with some modification as to the dock

and walkway,Since no final judgment in CA

3092,.The Court has no jurisdiction to make

20

= final decision for the District

Co=ze,

The affirmation of all three cases

or = vacated judgment in the old case and

wre -e new issues are submitted, therefore

these cases must be reviewed on their own

me>-ts,to deny petitioner due process and

ec-=21 protection would violate the 4 th

ar= 14 th Articles of the Constitution.

The modification of the Court of

Arceals opinion as to Dock and Walkways

by old permit but the additional wording

as =o fill would in essence issue a new

jucsment not authorized by the Constitu-

icn, since the courts are only Courts

o= review. (app 16,17,18a)

Consolidation pusuant to C.F.R.P

Ru_e 42 (a) Court order (app 8a)

Judgment in CA 3092 denying all mot-

ices (10,1lla)

The 1802 Compact of the Federal Gov-

er=ament, (1,2,3a) as recorded in the

Bock of Public Lands, p.125,126 by

Ge-e and Seaton (1832).

When a civil rights action and a tort

cease for damages is denied petitioner

fc> Constitutional violations and denial

c= a jury trial and when the Court of

A>peals Fifth Circuit and the District

Comrt depart from accepted and usual course

c= judicial procedure,This Honorable Court

most exercise supervision to uphold and

protect its citizens.

21

When an unauthorized without jurisd-

iction Complaint is filed by a Government

agent,who secures several other agents to

testify falsely and to induce altered and

hearsay evidence to secure a fraudulent

permenant injunction over a persons

property to deny him the rights to enjoy

use and protect to take without just

compensation for seven years and more

and did not use the machinery that the

law provided for the prosecution forwhich

the would be violation provided for,

constitutes a malicious abuse of legal

process,

Whereas the district court grants a

new trial and allows the government witn-

ess to testify and refuses to grant peti-

tioner the same rights and after 5 years

has not issued a final judgment so as to

restrain petitioner from the use of pri-

vate property and ignores the constitut-

ional rights of the individual . Case

CA 3092 must be dismissed, Case CV475-221

as for requirement of a permit without

jurisdiction, must be held liable for all

damages, Por just compensation, Tresspass.

Case 79-2942, Whereas the case o

Conspiracy,Fraud and perjury can only be

proven by facts, therefore this case must

be returned for trial as guaranteed by the

Constitution.

The Court of Appeals fifth circuit

has violated its jurisdictional rights to

issue a mandate where no final judgment

was issued, and to affirm their mandate

by a vacated judgment that mutes the or-

22

original verdict and decision of

the Court of Appeals in April of 1975,

the District Court having granted a new

trial in December of 1975 supercedes

the old verdicte, therefore must vacate

their mandate.

The Secretary of the Army and the

Chief of the Army Corps of Engineers are

without authority to amend or change

statutory definition of navigable waters

as used in the water Act and they acted

unlawfully and in dergation of their re-

sponsabilities.

NRDC v.CALLAWY, 392 F. Supp 685 (1975_

U.S. Constitution Art.1,§8,cl 3.

Whereby the Secretary of the Army

issued Federal Register, 25 July 1975

by Court order, which included, Grand-

Father clause, where permits would not

be required, for Marshlands or Wetlands

as they are referred too. This includes

Petitioner property from a permit,

although the property was high fast a

land. a

This Honorable Court must settle the

question of"Riparian Rights" pursuant to

State law, as in Oregon v. Corvallis.

For the above stated reasons,Petit-

loner request's this Honorable Court issue

a writ of Certiorari.

Respectfully Submitted

y ’

ALeA 7H AOU AO..0arr-zond

Herman Diamond, pro se

3610 Macceo Dr.

Savannah, Ga. 31410

Phone (912) 897-2442

APPENDIX

la

7th Congress] {lst Session

. No. 69

GEORGIA CESSION

Communicated to Congress, April 26, 1802

(American State Papers, Public Lands.

page 125, Gale & Seaton (1832)

Gentlemen of the Senate and the

House of Representatives:

In pursuance of the act entitled,

"An act supplemental to the act, en-

titled An act for an amicable settle-

ment of the limits with the State of

Georgia, and authorizing the establish-

ment of a Government in the Mississippi

territory," James Madison, Secretary

of State, Albert Gallatin, Secretary of

the Treasury, and Levi Lincoln, Attorney

General of the United States, were

appointed commissioners to settle, by

compromise, with the commissioners ap-

pointed by the State of Georgia, the

claims and cession to which the said

act has relation.

Articles of agreement and cession

have accordingly been entered into, and

Signed by the said commissioners of the

United States and of Georgia; which, as

they leave a right to Congress to act

upon them legislatively at any time

within six months after their date, I

have thought it my duty immediately to

communicate to the Legislature.

April 26, 1802. Tn ee a

2a

City of Washington, April 26, 1802.

Sir:

We have the honor to enclose a copy

of an agreement entered into between the

commissioners of the United States and

those of Georgia in pursuance of the

act, entitled, "An act supplemental to

the act, entitled An act for an amica-

ble settlement of limits with the State

of Georgia, and authorizing the estab-

lishment of a Government in the Missis-

sippi territory."

The nature and importance of the

transaction have induced the insertion

of a clause which renders it necessary

that the subject should be communicated

to Congress, during their present ses-

sion.

We have the honor to be,

very respectfully, sir, your obedient

servants,

JAMES MADISON,

ALBERT GALLATIN,

LEVI LINCOLN.

The President of the United States.

ART. II. The United States accept the

cession above mentioned, and on the

conditions therein expressed: and they

cede to the State of Georgia whatever

claim, right, or title, they may have

to the jurisdiction or soil of any lands

lying within the United States, and out

3a

of the proper boundaries of any other

State, and situated south of the south-

ern boundaries of the States of Tennessee,

North Carolina, and South Carolina, and

east of the boundary line hereinabove

described, as the eastern boundary of

the territory ceded by Georgia to the

United States.

In faith whereof the respective

commissioners have signed these presents

and affixed hereunto their seals.

Done at the city of Washington, in

the District of Columbia, this twenty-

fourth day of April, one thousand eight

hundred and two.

JAMES MADISON, [L.S.]

ALBERT GALLATIN, [L.S.]

LEVI LINCOLN, (L.S.]

Commissioners on the part of the United States.

JAMES JACKSON, [L.S.]

ABRAH. BALDWIN, [L.S.]

JOHN MILLEDGE, [L.S.]

Commissioners on the part of the

State of Georgia.

J. Franklin, Senator of the )

United States for )

North Carolina, )

Samuel A. Otis, Secretary of )

the Senate of the )Witnesses

United States, )

John Beckley, Clerk of the House)

of Representatives )

of the United )

)

4a

UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

United States of America, )

Plaintiff, .

CIVIL ACTION

y )

2 )

Herman Diamond, yNo. 3092

Defendant. )

COMPLAINT

NOW COMES the Plaintiff, United

States of America, by and through its

undersigned counsel, and complaining of

the Defendant, HERMAN DIAMOND, alleges

and says as follows:

1. This Honorable Court has juris-

diction over this cause ofaction by

virtue of the fact that the United

States of America is the plaintiff here-

in (Title 28, United States Code, Sec-

tion 1345).

2. The defendant is an individual

residing and living within the Southern

District of Georgia.

3. On April 4, 1973, and at times

unknown to the plaintiff, and prior

thereto, and continuing through until

the present time, the defendant and

others acting as agents of said defend-

ant jointly and severally undertook the

fill of estuarine marshlands within the

5a

navigable waters of the United States

in a marsh adjacent to Richardson Creek,

Oatland Island, Chatham County, Georgia;

and thereby threw, discharged, deposited,

caused to be deposited, procured to be

thrown, and suffered to be deposited from

the shore, within the navigable waters

of the United States, refuse, which in-

cludes but is not limited to the follow-

ing: roots or stumps, broken concrete,

construction materials, and dirt, in

violation of the provisions ‘of Title 33

United States Code, Section 407; and .

further, defendant has created an ob-

struction to navigation within the navi-

gable waters of the United States, to

wit: the estuarine marshlands adjacent

to Richardson Creek, Oatland Island,

the said obstruction not being affirma-

tively authorized by Congress and, there-

fore, prohibited by and in violation of

Title 33, United States Code, Section

403.

4. No Department of the Army permit

for dumping of fill within the navigable

waters of Richardson Creek, Oatland

Island, has been issued to the defend-

ant. Defendant has not applied for said

permit.

5. Upon information and belief, it

is alleged that the defendant has not

ceased the said depositing of refuse

within the navigable waters of the

United States.

6a

6. The said refuse now lying with-

in the estuarine marshlands of the

United States is and represents an ir-

reparable damage and harm to the

plaintiff and to the people of the

United States.

7. The said deposit of refuse with-

in the navigable waters of the United

States, if allowed to remain, will fur-

ther impair and destroy the navigable

waters of Richardson Creek, Oatland

Island.

8. Unless defendant, HERMAN DIAMOND,

and his agents are restrained from fur-

ther depositing of refuse within the

navigable waters of the United States

the same will continue in their efforts

to complete the unauthorized land fill

operation.

WHEREFORE, the plaintiff prays to

the Court:

1. That a permanent Injunction

issue to restrain and enjoin the defend-

ant from further depositing or dumping

of refuse of any kind within the navi-

gable waters of the United States, parti-

cularly in the marshlands of Richardson

Creek, Oatland Island, Chatham County,

Georgia, the said dumping or depositing

of refuse being in direct violation of

the laws of the United States; and

2. That an Order issue mandatorily

compelling the defendant to remove the

said refuse heretofore deposited within

Ta

the navigable waters of the United

States in said area; or

3. In the alternative, that the

Court award damages to the plaintiff,

both compensatory and punitive, along

with the costs of this action, and

such other and further relief as the -

Court may deem just, reasonable, and

proper.

Lamar C. Walter

Assistant United States

Attorney

Address:

P. O. Box 8999

Savannah, Georgia 31402

wpa

UNITED STATES DISTRICT COURT FOR THE

. SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Herman Diamond, )

Plaintiff, :

a CIVIL

ACTION

United States of America , NO.

and United States Army 475-221

Corps of Engineers, )

Savannah District, ,

Defendants, )

ORDER

The defendants have filed a motion

to consolidate the above action with

Civil Action Number 3092, United States

v. Herman Diamond, now pending before

this Court. The Court having read and

considered the motion is of the opinion

that consolidation is proper under Rule

42 (a) of the Federal Rules of Civil

Procedure. Accordingly, and for good

cause thus appearing, it is,

ORDERED, ADJUDGED, and DECREED that

Civil Action Number 475-221, Herman

Diamond v. United States of America and

United States Army Corps of Engineers,

Savannah District, be and the same is

9a

hereby consolidated with Civil Action

Number 3092, United States v. Herman

Diamond.

This 4th day of December, 1975.

Alexander A. Lawrence

Chief Judge, United States

District Court, Southern

District of Georgia

UNITED STATES DISTRICT COURT

For the

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Civil Action File No. CV475-221

HERMAND DIAMOND

vs.

UNITED STATES OF AMERICA

AND UNITED STATES ARMY

CORPS OF ENGINEERS,

SAVANNAH DISTRICT

JUDGMENT

el Rel Red Ree eee Ree

This action came on for (hearing)

before the Court, Honorable Alexander A.

Lawrence, United States District Judge,

presiding, and the issues having been

duly (heard) and a decision haing been

duly rendered.

|

10a

It is Ordered and Adjudged that in

' accordance with such decision Judgment

is hereby rendered in favor of the De-

fendants, UNITED STATES OF AMERICA AND

UNITED STATES ARMY CORPS OF ENGINEERS,

SAVANNAH DISTRICT, and against the

Plaintiff, HERMAN DIAMOND.

Dated at Savannah, Georgia, this

2nd day of August, 1978.

Louis E. Aenchbacher

Clerk of Court

By: Michael M. Aarrett

Deputy Clerk

UNITED STATES DISTRICT COURT

For the

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Civil Action File No. 3092

UNITED STATES OF AMERICA ]

vs. ] JUDGMENT

HERMAN DIAMOND ]

This action came on for (hearing) be-

fore the Court, Honorable Alexander A.

Lawrence, United States District Judge,

presiding, and the issues having been

duly (heard) and a decision having been

duly rendered,

\ lla

It is Ordered and Adjudged that in

accordance with such decision Diamond's

various motions pending in Civil Action

No. 3092 and CV475-221 are overruled.

Dated at Savannah, Georgia, this

2nd day of August, 1978.

Louis E. Aenchbacher

Clerk of Court

By: Michael M. Aarrett

Deputy Clerk

l2a

UNITED STATES DISTRICT COURT

For the

SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

Civil Action File No. CV477-80

HERMAN DIAMOND

vs.

DR. FREDERICK C. MARLAND, Department

of Natural Resources, State of Georgia;

COLONEL EDWIN C. KEISER, District En-

gineer; COLONEL FRANK WALTER, District

Engineer: STEVEN OSVALD, Permit Section,

Engineers; WILLIAM L. YOUNG, Engineer;

EDWARD MYATT, Engineer: GLENN F. MA-

CAULEY, of the United States Corps of

Engineers, Savannah, Georgia, District

This action came on for (hearing)

before the Court, Honorable Alexander A.

Lawrence, United States District Judge,

presiding, and the issues having been

duly (heard) and a decision having been

duly rendered,

It is Ordered and Adjudged that in

accordance with such decision the De-

fendants' motions for summary judgment

are granted and the conspiracy action

is hereby dismissed.

Dated at Savannah, Georgia, this 20th

day of July, 1979.

HENRY R. CRUMLEY,JR.

Clerk of Court

l3a

Title 33 9.8.C. Sees

REGULATIONS BY SECRETARY OF THE

ARMY FOR NAVIGATION OF WATERS GENERALLY

It shall be the duty of the Secre-

tary of the Army to prescribe such regu-

lations for the use, administration, and

navigation of the navigable waters of

the United States as in his judgment the

public necessity may require for the pro-

tection of life and property, or of

operations of the United States in chan-

nel improvement, covering all matters not

specifically delegated by law to some

other executive department. Such regu-

lations shall be posted, in conspicuous

and appropriate places, for the informa-

tion of the public.

CODE OF FEDERAL REGULATIONS

(1973)

§209.260(K) (1)(ii). (p.362) Shoreward limit

of jurisdiction. Regulatory 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 the

actual location of the line becomes neces-

sary, it must be established by survey

with reference to the available tidal

datum, preferably averaged over a period

of 18.6 years.

LAWS OF THE STATE OF GEORGIA

85-1308. Rights of owners of land adja-

cent - to navigable tidewaters. --

l4a

For all purposes ....... the boundar-es

and rights of owners of land adjacen= to

or covered in whole or in part by navi-

gable tidewaters, as defined in the z>re-

ceding section, shall extend to low water

mark in the bed of the water. Provised

however, that nothing in this and the two

preceding sections shall be so const=ued

as to authorize such an exclusive aproro-

priation of any tidewater, navigable or

nonnavigable, by any person whomsoever,

as to prevent the free use of the same

by others, for purposes of passage and

for the transportation of such frei¢ghts

as may be capable of being carried there-

over. (Acts 1902, p. 108)

85-1310. Levees and ditches; constr=c-

tion authorized. -- All persons owning,

or who may hereafter own, lands on any

watercourses are authorized and em-

powered to ditch and embank their lands,

so as to protect the same from freshets

and overflows in said watercourses: >ro-

vided always,that the said ditching and

embanking does not divert said watercourse

from its ordinary channel.

GEORGIA STATE CONSTITUTION

Art. 1, Sed. 6, Par. i

Tidewater titles: confirmed. The

Act of the General Assembly approvec

December 16, 1902, which extends the

title of ownership of lands abuttinc

on tidal water to low water mark is

hereby ratified and confirmed.

15a

LAWS OF THE STATE OF GEORGIA

70-401. Time of new trial. - When a new

trial has been granted by the superior

court, the case shall stand on the dock-

et for trial at the next term as though

no trial had been had, subject to the

Rules for continuances provided in this

Code.

105-1401. Interfering with enjoyment of

private property. - The right of enjoy-

ment of private property being an abso-

lute right of every citizen, every act

Or another which unlawfully interferes

with such enjoyment is a tort for which

an action shall lie.

105-1402. Right of possession. - The

bare right to possession of lands shall

authorize their recovery by the owner of

such right, and also damages for the

withholding of the right.

105-1406. Damages for continuing tres-

pass. - Damages for a continuing trespass

are limited to those which have occurred

before action is commenced. Subsequent

damages flowing from a continuance of

the trespass give a new cause of action.

105-1409. Rights above and below the

surface. - The owner of realty having

title downwards and upwards indefinitely,

an unlawful interference with his rights,

below or above the surface, alike gives

him a right of action.

l6a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Nos. 78-2969 and DO NOT

79-2942 PUBLISH

UNITED STATES OF AMERICA and

STATE OF GEORGIA,

Plaintiffs-Appellees,

versus

HERMAN DIAMOND, Defendant-Appellant.

x rekekkkkkki tk

HERMAN DIAMOND,

Plaintiff-Appellant,

versus

UNITED STATES OF AMERICA and

UNITED STATES ARMY CORPS OF

ENGINEERS, Savannah District,

Defendants~-Appellees.

HERMAN DIAMOND,

Plaintiff-Appellant,

versus

DR. FREDERICK C. MARLAND,

‘Dept. of Natural Resources,

State of Georgia, ET AL,

Defendants~-Appellees.

(continued)

17a

Appeals from the United States District

Court for the

Southern District of Georgia

[April 28, 1980]

Before GOLDBERG, CHARLES CLARK and

THOMAS A. CLARK, Circuit Judges.

PER CURIAN:

The Court finds that the appellant,

HERMAN DIAMOND, has the right to rebuild

or repair and to maintain a dock and

walkway at the same location the original

dock and walkway were authorized and

built under a previously issued United

States Army Corps of Engineers permit,

and finds that no addition or removal of

fill material on any part of the lands

owned by Diamond in the Richardson Creek

area is to be required or permitted in

connection with any rebuilding, repair or

maintenance of he F, dock and walkway. We

some cau affirm.= See Local Rule

yp Oe

AFFIRMED.

(continued)

1

2 ies cain States v. Diamond, 512 F.2d 157

(Sth Cir.), cert. denied, 423 U.S.928 (1975).

2/

~ See N.L.R.B. v. Amalgamated Clothing

Workers of America, 430 F.2d 966 (5th Cir.)

1970.

18a

Appellees' petition for clarifica-

tion of the Court's opinion entered on

April 28, 1980, is granted.

The preceding sentence in our ori-

ginal opinion is deleted and the sentence

set out below is substituted therefor:

The court finds that the appellant,

HERMAND DIAMOND, has the right to rebuild

or repair and to maintain a dock and walk-

way at the same location the original

dock and walkway were authorized and built

under a previously issued United States

Corps of Engineers permit, provided how-

ever, the right to rebuild or repair and

to maintain the previously authorized

dock and walkway does not include the

right to place additional fill material

on any part of the lands owned by Diamond °

in the Richardson Creek area.

15-101. BOUNDARIES OF THE STATE. - The bounda-

ries of Georgia as deduced from the Con-

stitution of Beaufort, the Articles of

Cession and Agreement with the United

States of America entered into on the 24th

of April 1802.

15-201. EXTENT OF SOVEREIGNTY AND JURISDICTION.

The sovereignty and jurisdiction of this

State extend to all places within the

limits of her boundaries, except so far

as she has voluntarily ceded the same to

the United States or adjacent States over

particular localities.

19a

ARTICLES OF THE CONSTITUTION

Art. 4. Sec. 3. Parg. i:

New States Admitted. New states may be

admitted by the Congress into this

Union; but no new State shall be form-

ed or erected within the Jurisdiction

of any other State; nor any State be

formed by the Junction of two or more

States, or Parts of States, without the

Consent of the Legislatures of the

States concerned as well as of the Con-

gress,

Art. 6, Sec. 1. Parg. 2:

Constitution and Treaties as the Supreme

Law. This Constitution, and the Laws

of the United States which shall be

made in Pursuance thereof; and all

Treaties made or which shall be made,

under the Authority of the United States,

shall be the supreme Law of the Land;

and the Judges in every State shall be

bound thereby, any Thing in the Consti-

tution or Laws of any State to the

Contrary notwithstanding.

20a

VACATED JUDGMENT IN CA 3092

United States District Court

Southern District of Georgia

Savannah Division

United States of America]

]

V. ]

]

Herman Diamond

JUDGMENT

This cause came on to be heard on

the complaint of the United States of

America, plaintiff, and the Court having

heard oral evidence and admitted ex-

hibits in open court and the Court hav-

ing entered its findings of fact and

conclusions of law on April 17, 1974,

and it further appearing to the court

that the defendant is committing acts

and is about to commit acts as set

forth in plaintiff's complaint, and will

continue to do so unless restrained by

order of this court, and that the said

acts have caused irreparable injury and

damage to the marshlands described in

the complaint and that immediate and

irreparable injury, loss or damage to

the described area will result and that

the activities described in the complaint

have been conducted by Herman Diamond

without a permit from the Secretary of

Army as required by 33 U.S.C. Section

403, and are in direct violation of the

laws of the United States. (con't.)

2la

IT IS ORDERED, ADJUDGED AND DECREED

that the defendant, Herman Diamond, his

servants, agents, employees, attorneys,

successors, and assigns, and each of

them, be permanently enjoined and re-

strained from engaging in or permitting

suffering, or causing, directly or in-

directly, any fill or construction opera-

tions on the area in dispute, bounded on

the north by Richardson Creek and on the

south by Oatland Island Road, Chatham

County, Georgia.

This 17th day of April, 1974.

Alexander A. Lawrence

Chief Judge,

United States District

Court