# Petition — Diamond v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 900

## Text

! 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0212%3A1. Public record. Not legal advice.