Petition — DeFelice v. United States

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| Office-Supreme Court, U.S.

NUL

Inthe .

Supreme Court of the United States

October Term, 1980

SAVARE DE FELICE

Petitioner

VERSUS

UNITED STATES OF AMERICA

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS

FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CHARLES E. LUGENBUHL

VANCE E. ELLEFSON

Lugenbuhl, Larzelere &

Ellefson

600 Carondelet Street

Suite 602, Central Plaza

New Orleans, La. 70130

Telephone (504) 523-6066

Attorney for Savare

DeFelice

FFP ERE RR ER RR SRO,

AB Letter Service, inc., 327 Chartres St., New Orleans, La. (504) 581-5555

QUESTIONS PRESENTED:

The United States of America brought suit under

33 U.S.C. 88401, 403 (889 and 10 of the Rivers and Har-

bors Act of 1899) and 33 U.S.C. 8$1311(a), 1344(a)

(88301(a), 404(a) of the Federal Water Pollution Con-

trol Act seeking an injunction ordering petitioner,

Savare DeFelice, to remove sand and other fill

materials which he had placed in the Cheniere

Traverse Canal, a man-made waterway, in an attempt

to restore access to his property, in accordance with

the final judgment of the Court of Appeal, Fourth Cir-

cuit, State of Louisiana (a copy of which is contained,

infra, in Appendix C, pages 26 through 29).

The question thereby arising is:

DOES THE CORPS OF ENGINEERS

HAVE JURISDICTION UNDER EITHER

THE RIVERS AND HARBORS ACT OR

THE FEDERAL WATER POLLUTION

CONTROL ACT TO REQUIRE A PERMIT,

OR DENY PETITIONER THE RIGHT, TO

REPLACE A WRONGFULLY REMOVED

DAM, ACROSS A MAN-MADE CANAL,

WHICH DAM PROVIDES PETITION

-ER’S ONLY ACCESS TO HIS PROPERTY

AND WHICH WAS BEING REPLACED

IN ACCORDANCE WITH THE FINAL

JUDGMENT OF A STATE COURT AND,

IF THE CORPS HAS SUCH JURISDIC-

TION DID IT ACT ARBITRARILY AND

CAPRICIOUSLY IN THE EXERCISE OF

THAT JURISDICTION? |

TABLE OF CONTENTS

Page

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Reason for Granting the Wri t. 6

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CITATIONS

Page

Kaiser Aetna v. U.S., U.S. , 100 S. Ct.

/ mas oes bas Oe 8, 11, 12, 15

Vaughn v. Vermilion Corp.. U. S., 100 S.

CURR AA ˙ th +s s09h~ 9, 11, 13, 15

DeFelice Land Corporation v. Citrus Lands of

Louisiana 330 So. 2d. 631(La. App. 4th Cir. 1976)4

STATUTES:

33 U.S.C. 88401, 403 (889 and 10 of the Rivers and

een kd Bos tacos swe byes oe i, 5

33 U.S.C. $$1311(a), 1344(a), (§8301(a),404(a) of the

Federal Water Pollution Control Act............ i, 5

33 C. F. R. $329.3, 329.4, 329.5, 329.8............. 7

„% 5: 6656 vik eos CPN bo RUM be eee 0.5490 8

In the

SUPREME COURT

OF THE UNITED STATES

NO.

UNITED STATES OF AMERICA

VERSUS

SAVARE DE FELICE

Petitioner

PETITION FOR WRIT OF CERTIOARI

TO THE COURT OF APPEALS,

FIFTH CIRCUIT

The Petitioner, Savare DeFelice, prays that a

Writ of Certiorari be issued to review the opinion and

judgment of the Court of Appeals, Fifth Circuit

rendered in these proceedings on April 9, 1981.

OPINIONS BELOW

The opinion of the Court of Appeals, reported at

641 F. 2d. 1169, appears at Appendix A, infra, pages 1

through 17. The opinion of the United States District

Court for the Eastern District of Louisiana,

unreported, appears at Appendix B, infra, pages 18

through 25.

JURISDICTION

The judgment of the Court of Appeals, Fifth Cir-

cuit, was entered on April 9, 1981. See Appendix A,

page 1, infra. This petition for certiorari was filed less

than ninety days from that date. The jurisdiction of

this Court is invoked under 28 U.S.C. $ 125441).

STATEMENT OF FACTS

In 1944, the DeFelice family purchased property

in Plaquemines Parish, Louisiana. (Transcript, here-

inafter Tr. p. 188, 226-referring to the Transcript on

Appeal to the Fifth Circuit). Because the land was ac-

cessible only through adjacent property owned by

Citrus Lands of Louisiana, the purchase agreement in-

cluded a right of access through Citrus Lands’ proper-

ty to a shell surfaced roadway atop a dam which

crossed a man-made drainage canal — commonly

known as the Cheniere Traverse Canal (West Canal).

(Tr. p. 189, 226-27, 233, 236-37; Defendant’s Ex. 1-16).

The lands through which the DeFelice family had

access to their property were subsequently sold to a

private individual in 1959 by Citrus Lands of Louisi-

ana. Subsequently, the adjacent landowner made an

offer to purchase the DeFelice property, which offer

was refused. A gate was then placed across the right

of way which left the property inaccessiable except by

water. (Tr. p. 189, 238). Until the destruction of the

dam, the canal was not navigable in- fact due to the

existence of the dam. Even subsequent to the destruc-

tion of the dam, during the winter months the canal is

navigable only by small canoes or pirogues (Tr. p.

237-40).

As early as 1959 or 1960, the adjacent landowner

had begun leasing ‘‘campsites’’ on his property.

Shortly after the DeFelice family was denied access to

its property by the adjacent landowner, unknown per-

sons started cutting away at the dam across the canal,

by which the DeFelice family had gained access to its

property, until it was completely destroyed by late

1965 or early 1966. (Tr. p. 237). Subsequent to that

time navigation of the full length of the canal became

possible.

The DeFelice family attempted to negotiate with

the adjacent landowner to obtain removal of the gate

blocking access to their property. When the negotia-

tions failed, suit was filed, in 1974, which resulted in

the decision reported in DeFelice Land Corporation

vs. Citrus Lands of Louisiana, 330 So. 2d. 631 (La.

App. 4th Cir. 1976), granting the DeFelice family

right of access to and egress from the property at the

point it had previously been exercised under the

original agreement. (Tr. p. 189-91, 226-29). Pursuant

to this judgment, an order was entered by the District

Court for a survey to establish the metes and bounds

of the original right-of-way. (Def. Ex. No. 20).

In July, 1977, in recognition of the legally

established right of passage, Mr. Savare DeFelice, on

behalf of the family, began to reconstruct the dam by

placing fill material in the canal to reconstruct the

dam in the manner in which it was originally built. (Tr.

p. 190-93). On July 17, 1977, an investigator of the

Corps of Engineers appeared at the proposed canal

crossing and ordered the work stopped. A Cease and

Desist Order was sent to Mr. DeFelice by certified

mail alleging he was in violation of 33 U.S.C. 58 401,

403, and 33 U.S.C. $$1311(a), 1344(a), for failing to ob-

tain dam construction and pollutent discharge per-

mits.

After inviting Mr. DeFelice to provide an ex-

planation as to his actions, but before the expiration

of the time period granted for such a reply and prior to

receiving a reply from Mr. DeFelice, the Corps in-

formed Mr. DeFelice that he was to remove all con-

struction begun in the canal and that he need not at-

tempt to apply for a permit to cross the canal, as the

Corps did not deem it in the public interest“ to grant

such a permit. (Government Ex. No. 3, No. 12; Tr. p.

183-84). The Corps subsequently initiated litigation

against Mr. DeFelice seeking an injunction and order

to remove the material placed in the canal. A counter-

claim for the value of the property taken by the Corps

of Engineers was filed in the District Court. The

District Court ordered a separate trial for the counter-

claim, which is still pending. The District Court held

the actions of the Corps of Engineers reasonable and

proper and within their authority and that decision

was affirmed by the Court of Appeals, Fifth Circuit.

Mr. DeFelice applies to this Court for a writ of cer-

tiorari.

REASON FOR GRANTING THE WRIT:

THE CORPS OF ENGINEERS DOES NOT

HAVE JURISDICTION UNDER EITHER THE

RIVERS & HARBORS ACT OR THE FWPCA TO

REQUIRE A PERMIT, OR DENY PETITIONER

THE RIGHT TO REPLACE A WRONGFULLY

REMOVED DAM ACROSS A MAN-MADE

CANAL, WHICH DAM _ PROVIDES

PETITIONER’S ONLY ACCESS TO HIS PROPER-

TY AND WHICH WAS BEING REPLACED IN

ACCORDANCE WITH THE FINAL JUDGMENT

OF A STATE COURT AND, IF THE CORPS HAS

SUCH JURISDICTION, IT ACTED ARBITRARI-

LY IN THE EXERCISE OF THAT JURISDIC-

TION.

The Canal in question, the Cheniere Traverse

Canal, is a man-made drainage canal (641 F. 2nd 1170).

Prior to the denial of the DeFelice family’s right of ac-

cess to their property by blocking the road providing

access to the property, and the unauthorized removal

of the dam, the canal, in effect, consisted of two

canals, each of which began on either side of the dam

and proceeded in different directions, through a series

of natural and man-made canals, ultimately connect-

ing to Barataria Bay and the Gulf of Mexico (See F.N.

12. 641 F. 2d. 1169).

The earliest known map showing the existence of

the canal, shows the dam in place across the canal (See

Defendant’s Ex. No. 17). The Fifth Circuit found the

Corps had jurisdiction, and the Corps had properly in-

terpreted its regulations as set out in 33 C.F.R.

$§329.3, 329.4, 329.5, 329.8. The real issues in that

regard are, however, (1)whether, prior to the destruc-

tion of the dam the Corps jurisdiction extended to the

dam itself and not simply to the waters on each side;

and (2) whether the removal of the dam, even though

improper and a wrongful act, automatically extended

Corps’ jurisdiction to the area formerly occupied by

the dam?

The key point, and the point ignored by both the

District Court and the Court of Appeal, was that,

prior to the removal of the dam, while the waters on

either side of the dam were affected by the ebb and

flow of the tide, the nature and construction of the

canal and dam were such that the canal was not

navigable in fact (641 F. 2d. 1174-75). The Fifth Cir-

cuit’s decision is built on a faulty foundation. The

Court of Appeal, the District Court and the Corps of

Engineers all ignored the sequence of events leading

to the rebuilding of the dam. As shown by the record,

these were: (1) Denial of access to the dam and the

property beyond; (2) Wrongful removal of the dam; (3)

Subsequent navigability in fact“ vf the canal; and,

(4) Timely legal action, in the proper jurisdiction, to

obtain access to the dam and property beyond.

Whether the property in question was the sub-

ject of a general grant to the State of Lousiana and

subsequent sale to private parties (See: 43 U.S.C.

9982) or subject to prior ownership by way of land

grant, there is no evidence in the record to suggest

that the canal is not private property. In fact, the

record clearly shows continuous acts by the owners to

maintain the private status of the waterway (Tr. p.

215).

This Court has recently rendered two decisions

touching on and applicable to this case. See: Kaiser

Aetna v. U.S., US. , 100 S. Ct. 383(1979);

Vaughn v. Vermillion Corp., U. S. 100 S. Ct. 399

(1979).

As found by the District Court, the Court of Ap-

peals, and as clearly evidenced by the record, in this

case, Petitioner’s only access, other than by water, to

his property was by way of the wrongfully removed

dam. Following the wrongful removal of the dam and

blocking of access to petitioner’s property, the

DeFelice family entered into a good faith attempt to

amicably resolve their difficulties with the adjacent

landowner. When attempts to amicably resolve the

problem failed, petitioners undertook legal action in a

court of proper jurisdiction (The Louisiana State

courts), in a timely manner under Louisiana law,

ultimately resolving the matter in their favor in a

judgment of the Fourth Circuit Court of Appeal,

which became final before petitoners began rebuilding

their access to their property. (Tr. p. 189-91, 226-29;

Appendix C).

We suggest that the alternative with which peti-

tioners were faced at the time they were barred from

access to their property and the dam which was their

only access to their property was wrongfully removed,

was an alternative abhored by the law — self-help. The

result of the decision of the District Court and the

Fifth Circuit is that, even though petitioners actions

were undertaken in a timely manner under the laws of

the State of Louisiana, petitioners erred in attempting

to amicably resolve their problem and then resorting

to a court of law for redress. Had petitioners engaged

in self-help by knocking down the gate which blocked

their access to their property and entering on to the

land of the adjacent landowner with trucks, bulldozers

and the other equipment necessary to rebuild the dam

(within a period of time unspecified by either Corps of

Engineers regulation, the District Court decision or

the decision of the Fifth Circuit), only then could they

have conformed to the law as espoused by the Corps of

Engineers, District Court and Court of Appeals.

While the question of the taking“ of petitioners’

property has been severed and is yet to be tried, there

can be no question under the present circumstances of

this litigation that the value of petitioners’ land, when

only accessible by water and only then by way of

small boat, has been substantially reduced. Under

these circumstances, if this Court allows the decision

of the Fifth Circuit to stand, Kaiser Aetna must

apply.

However, the companion case to Kaiser Aetna,

Vaughn v. Vermilion Corp., U.S.. 100 S. Ct.

39901979) offers this Court the opportunity to both

avoid the inequities involved in the actions of the

Corps of Engineers and the decisions of the District

Court and Fifth Circuit, and obviate the necessity of

reaching the question of taking“ of property.

Vaughn is closely related to the case at bar, both by

way of locale and by way of fact. At question in both

cases are canals subject to tidal fluctuations which are

navigable in fact (although in the case at bar,

navigavibility in fact does not result from a voluntary

act on the part of the landowner). The canal system

ultimately enteres other natural navigable water-

ways, endng in the Gulf of Mexico. The canals are us-

ed for fishing and hunting and commercial activity

(although in the case at bar, the so-called com-

mercial activity’’ involved is substantially less than

in Vaughn). In Vaughn, this Court was presented with

two issues. First, when a private citizen, on privately

held real property, and with private funds creates a

system of artificial navigable waterways, in part by

means of diversion or destruction of pre-existing

natural navigable waterways, does the artifically

developed waterway system become part of the

“navigable waterways of the United States“ and sub-

ject to the use of all citizens? Second, whether chan-

nels built on private property and with private funds,

in such a manner that they ultimately joint with other

navigable waterways were similarly open to use by all

citizens of the United States.

The second issue was answered by this Court's

opinion in Kaiser Aeta. This Court held the Louisiana

Court of Appeal ... was correct in determining that

on such facts no general right of use in the public arose

by reason of the authority over navigation conferred

upon Congress by the commerce clause of Article I. of

the United States Constitution’. (100 Su. Ct. 401;

Emphasis added). The witnesses and complainants

relied upon by the Corps of Engineers in the action

against Mr. DeFelice were not adjacent landowners,

nor were they, with one exception, lessors of camp

sites“ in the area. Nor, in this case, is there any

evidence of diverson of destruction of a pre-

existing natual navigable waterway in the process of

construction of the private waterway .. .’’.

Camp sites were being leased in the area, prior to

the wrongful denial of access to the DeFelice property

and the wrongful removal of the dam. (See Tr.

pp.236-37, clearly showing that the statement of facts

relied upon in the Fifth Circuit’s Opinion were incor-

rect). Only after wrongful removal of the dam could

the canal be used in a manner which was previously

impossible, i.e., navigation from one end to the other.

Despite this factual circumstance, the District Court

and the Court of Appeal rest their opinion to the fact

that the waterway had become subject to a public ser-

vitude of navigation after removal of the dam.

This Court’s decision in Vaughn makes it clear, in

regard to the canal in question, that there is. . no

general right of use in the public.. which arises by

reason of the authority over navigation conferred

upon Congress by the commerce clause. On this basis,

the decisions of the District Court and the Court of

Appeals are clearly in error and should be reversed.

Under the record before this Court, the findings of the

Court of Appeal, in particular, are not justified by the

record. Nor are the conclusions reached by the

District Court and Court of Appeal, based on the facts

which they find to be present in the record, proper

under the law.

Assuming, for argument’s sake, the Corps did

have jurisdiction, it is clear the Corps’ regulations do

not allow for the delays of litigation. Under these cir-

cumstances, as interpreted by the Corps, there are

two alternative views. Either the Corps must be

viewed as not having assumed a regulatory stance on

this point or its interpretation of existing regulations

is arbitrary and capricious.

CONCLUSION

The actions of the Corps of Engineers, Court of

Appeal and District Court have placed petitioner,

Savare DeFelice, in the position of having forfeited

the right to gain access to his property, a right which

existed until the wrongful actions of the adjacentland-

owner in the depriving him os access to his property

and the wrongful actions of unknown individuals in

removing the dam which provided access to his prop-

erty. The basis for Mr. DeFelice having

forfeited his right is, according to the Corps, the

District Court and Court of Appeals, his reliance on

attempts to amicably compromise his problem with

the adjacent landowner and, then, resolve the problem

by way of legal action, in a timely manner in a Court of

competent jurisdiction. Under the rationale of this

Court’s decision in Vaughn v. Vermilion Corp., the

parties whom the Court of Appeals found would be

prejudiced by Mr. DeFelice exercising his right of ac-

cess to his property, are parties who have no right,

even absent the previously existing and wrongfully

removed dam, to be in the canal other than at the suf-

ferance of Mr. DeFelice and the adjacent landowner.

Under the facts of this case, we respectfully submit

that this Court must undertake the review of the deci-

sions below and remedy a decision which is both ine-

quitable and contrary to existing law. The alter-

native, under Kaiser Aetna, is that the case be return-

ed to the lower court for a determination of the

damages suffered by Mr. DeFelice as a result of the

taking of his property by the United States. Under

Vaughn, the actions of the Corps of Engineers were

improper and a grant of certiorari and reversal of the

decision of the Court of Appeals for the Fifth Circuit

will eliminate the necessity of reaching the question of

damages.

LUGENBUHL, LARZELERE, & ELLEFSON

Of Counsel

VANCE E. ELLEFSON

600 Carondelet Street

Suite 602, Central Plaza

New Orleans, La. 70130

Telephone:

(504) 523-6066

Attorney for Savare

DeFelice

CERTIFICATE

I do hereby certify that I have on this 7th day of

July, 1981, served a copy of the foregoing pleading

on all counsel for all parties to this litigation by mail-

ing same by United States mail, properly addressed,

first class postage prepaid.

A-1

UNITED STATES Of AMERICA,

Plaintiff-Appellee,

Savare De FELICE,

Defendant-Appellant.

No. 80-3397

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Unit A

April 9, 1981.

Riparian landowner appealed from an order of the

United States District Court for the Eastern District

of Louisiana, Patrick E. Carr, J., requiring him to

remove sand and other fill materials which he had

placed in a canal. The Court of Appeals, Brown, Cir-

cuit Judge, held that: (1) Cheniere Traverse Canal, a

private and artificial canal, by 1965 or 1966 became

navigable by operation of law and was subject to the

jurisdiction of the Corps of Engineers because it was

subject to the ebb and flow of the tide and was

A-2

navigable in fact because it was an arm in the flow of

interstate commerce to the Gulf of Mexico, and (2)

riparian landowner was required to obtain a permit

from Corps of Engineers before replacing a dam

across the canal where a prior dam had not been in ex-

istence for at least nine years and, after the prior dam

was removed, there was an influx of campers and

fishermen who invested in campsites and boats for

their own pleasure as well as commerical fishing based

on the navigability of the canal.

Affirmed.

1. Canals 25

Mere capability of navigability in commercial use

and/or fact that canal is subject to ebb and flow of tide

is sufficient to establish Corps of Engineers’ jurisdic-

tion over private and artificial canal. Rivers & Har-

bors Appropriation Act of 1899, § 9, 33 U.S.C.A. § 401.

2. Canals 25

Corps of Engineers may have jurisdiction over ar-

tificial and privately owned canal. Rivers & Harbors

Appropriation Act of 1899, § 9, 33 U.S.C.A. § 401.

A-3

3. Navigable Waters 103)

There is no requirement that body of water sus-

tain actual commerce in order to meet test of

navigability in fact and to support jurisdiction of

Corps of Engineers, but rather, mere capability of

commerical use of body of water suffices even if such

commerce could be made possible only with artificial

aid. Rivers & Harbors — Act of 1899, § 9,

33 U.S.C.A. § 401.

4. Navigable Waters 2

Even shallow tidal areas, like sloughs or marshes

below elevation of mean high water line, are subject to

Corps of Engineers regulation. Rivers & Harbors Ap-

propriation Act of 1899, § 9, 33 U.S. C. A. § 401.

5. Canals 25

Navigable Waters 106)

Cheniere Traverse Canal a private and artificial

canal, by 1965 or 1966 became navigable by operation

of law and was subject to jurisdiction of Corps of

Engineers because it was subject to ebb and flow of

tide and was navigable in fact because it was arm in

A-4

flow of interstate commerce to Gulf of Mexico. Rivers

& Harbors Appropriation Act of 1899, § 9, 33 U. S. C. A.

§ 401.

6. Navigable Waters 22(1)

Riparian landowner was required to obtain permit

from Corps of Engineers before replacing dam across

canal within Corps’ jurisdiction where prior dam had

not been in existence for at least nine years and, after

prior dam was removed, there was influx of campers

and fishermen who invested in campsites and boats

for their pleasure as well as commercial fishing based

on navigability of canal. Rivers & Harbors Ap-

propriation Act of 1899, § 10, 33 U.S.C.A. § 1403.

7. Administrative Law and Procedure 413

Reasonable interpretation by agency of its own

regulations is allowed great difference.

Appeal from the United States District Court for

the Eastern District of Louisiana.

Before BROWN, POLITZ and TATE, Circuit

Judges.

A-5

JOHN R. BROWN, Circuit Judge:

On February 28, 1980, the District Court entered

an injunction ordering Appellant/DeFelice to remove

the sand and other fill materials which he had placed

in the Cheniere Traverse Canal. His actions con-

stituted an attempt to restore access to his property.

The Court found DeFelice’s actions violated provi-

sions of the 1899 Rivers and Harbors Act (RHA) and

Federal Water Pollution Control Act (FWPCA) which

require the authorization of the United States Corps

of Engineers (Corps) prior to any construction or

polluting in any of the navigable waters of the

United States.“ Our review of the facts, applicable

statutes and code regulations, require us to affirm the

District Court’s actions.

I. Up the Proverbial Creek Without A Permit

The present controversy arise out of a purchase of

property by the DeFelice family in Plaquemines

Parish, Louisiana in 1944. Because the land was ac-

cessible only through the property owned by Citrus

Lands of Louisiana, the purchase agreement included

a right of access through Citrus Lands’ property to a

shell-surfaced roadway atop a dam which crossed a

man-made drainage canal—commonly known as the

A-6

Cheniere Traverse Canal (West Canal).' Eventually,

the right of access lands were sold to a private in-

dividual in 1959 by Citrus Lands, Inc. When the

DeFelices refused to sell their property to this same

individual, a gate was placed across the right-of-way

which left the property inaccessible except by water.

At about this same time, unknown persons started

cutting away at the dam across the canal until it was

completely destroyed by late 1965 or early 1966.

DeFelice’s attempts at negotiations with the ad-

jacent landowners to remove the gate proved

fruitless. Suit was filed in 1974 which resulted in the

decision of DeFelice Land Corp. v. Citrus Land of La.,

330 So.2d 631 (La. App. 4th Cir. 1976), granting the

DeFelice family right of access to and egress from the

property at the point it had previously exercised

under the original agreement. Pursuant to this judg-

ment, an order was entered by the District Court for a

survey to establish the metes and bounds of the

original right-of-way. In July 1977, in recognition of

this legally established right of passage, DeFelice

began to reconstruct the dam by placing sand and

other fill materials in the canal.? On July 17, 1977, an

1. Maps dated as far back as 1903 and aerial photos taken by

the Corps as early as 1958, show the presence of the dam across

the canal.

2. The record fixes the actual construction site at Woodpark

Campsite approximately 1.2 miles southeasterly from Myrtle

Creek, Louisiana and immediately southwesterly from Loui-

siana Highway 23 in Plaquemines Parish, Louisiana.

A-7

investigator of the Corps appeared at the proposed

dam site and ordered the work stopped.’ After several

unsuccessful attempts to serve a cease and desist

order, one was sent by certified mail to DeFelice

alleging that he was in violation of §§ 9, 10 of the

1899 (RHA), 33 U.S.C.A. § 401, 403.“

3. The record reflects that by July 19, 1977, the canal which is

approximately 40 feet in width at this point, had already been

completely filled up to ground level on each bank and was com-

pletely blocking the waterway.

4. Section 9 of the 1899 RHA, 33 U.S. C. A. § 401 provides:

It shall not be lawful to construct or Commence the

construction of any bridge, dam, dike, or causeway

over or in any port, roadstead, haven, harbor, canal,

navigable river, or other navigable water of the United

States until the consent of Congress to the building of

such structures shall have been obtained and until the

plans for the same shall have been submitted to and ap-

proved by the Chief of Engineers and by the Secretary

of the Army: Provided, That such structures may be

built under authority of the legislature of a State

across rivers and other waterways the navigable por-

tions of which lie wholly within the limits of a single

State, provided the location and plans thereof are sub-

mitted to and approved by the Chief of Engineers and

by the Secretary of the Army before construction is

commenced: And provided further, That when plans

for any bridge or other structure have been approved

by the Chief of Engineers and by the Secretary of the

Army, it shall not be lawful to deviate from such plans

either before or after completion of the structure unless

the modification of said plans has previously been sub-

mitted to and received the approval of the Chief of

Engineers and of the Secretary of the Army.

Section 10 of the 1899 RHA, 33 U.S. C. A. § 403 provides:

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is prohibited:

and it shall not be lawful to excavate or fill, or in any

manner to alter or modify the course, location, condi-

tion, or capacity of, any port, roadstead, haven, harbor,

canal, lake, harbor or refuge, or inclosure within the

A-8

and §§ 301(a), 404(a) of the (FWPCA), 33 U.S. C. A. §§

1311(a), 1344(a)’, for failing to obtain respectively

dam construction and pollutant discharge permits.“

Note 4 - Continued

limits of any breakwater, 5

navigable water of the United States, unless the work

has been recommended by the Secretary of the Army

prior to beginning the same.

5. Section 301(a) of the FWPCA, 86 Stat. 844, 33 U.S.C.A. §

1311(a) provides:

Except as in compliance with this section and sections

302, 306, 307, 318, 402, and 404 of this Act, the

discharge of any pollutant by any person shall be

unlawful.

33 U.S. C. A. § 1362(6) provides:

The term “pollutant’’ means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological

materials, radioactive materials, heat, wrecked or

discarded equipment, rock, sand, cellar dirt and in-

dustrial, municipal, and agricultural waste discharged

into water.

Section 309(d) of the FWPCA, 86 Stat. 860, 33 U.S.C.A. §

1319(d), provides:

Any person who violates section 301, 302, 306, 307, or

308 of this Act, or any permit condition or limitation

implementing any of such sections in a permit issued

under section 402 of this Act by the Administrator, or

by a State, and any person who violates any order

issued by the Administrator under sub-section (a) of

this section, shall be subject to a civil penalty not to ex-

ceed $10,000 per day of such violation.

Note 5 - Continued

Section 404(a) of the FWPCA, 86 Stat. 884, 33 U.S. C. A.

§ 1344(a), provides:

The Secretary of the Army, acting through the Chief of

Engineers, may issue permits, after notice and oppor-

tunity of public hearings for the discharge of dredged

or fill material into the no vigable waters at specified

disposal sites.

6. See Appendix I.

A-9

The Corps subsequently initiated litigation

against DeFelice seeking an injunction and order to

remove the material which he had placed in the canal.

DeFelice counterclaimed for the value of the property

taken from him by the Corps’ actions.’ Testimony

from surrounding residents whose access to other

canals leading to the Gulf of Mexico had been blocked

by the DeFelice’s dam, lod the District Court to find

that the materials placed in the canal had reduced the

depth of the water and impaired navigation. The

Court entered injunction on February 28, 1980, and

ordered DeFelice to remove this material in an

amount sufficient to restore the depth of the water

and the contour of the canal adjacent to the dam site

to its pre-1977 condition.“

7. The Court ordered separate trials for DeFelice's

counterclaim for $100,000 against the Government's alleged

taking of the property. That suit is still pending.

8. The statutory authority for the injunction is found in 33

U.S. C. A. § 406, and 33 U.S. C. A. § 1319(d), (see n.4, supra):

Every person and every corporation that shall violate

any of the provisions of sections 401, 403, and 404 of

this title or any rule or regulation made by the

Secretary of the Army in pursuance of the provisions

of section 404 of this title shall be deemed guilty of a

misdemeanor, and on conviction thereof shall be

punished by a fine not exceeding $2,500 nor less than

$500, or by imprisonment (in the case of a natural per-

son) not exceeding one year, or by both such

punishments, in the discretion of the court. And fur-

ther, the removal of any structures or parts of struc-

tures erected in violation of the provisions of the said

A-10

DeFelice seeks a review of this judgment alleging

that the District Court erred (i) in finding that the

Corps had jurisdiction over the replacement of the

dam in a private canal based upon the alleged

“navigability’’ of the canal, and (ii) in accepting the

Corps’ interpretation of the phrase currently ser-

viceable’’ as used in the regulations.

The Ebb And Flow Of Navuigability“ —

Corps’ jurisdiction?

II] The principal question on appeal is whether the

District Court correctly found that the Corns had

jurisdiction by operation of law from the time the

canal became capable of navigation under § 10 of the

(RHA), 33 U.S.C.A. § 403. (See n.4, supra. The focal

point then becomes the correct standard for determin-

ing navigability and ultimately Corps’ jurisdiction.

The Court below held that the mere capability of

navigability in commercial use and/or the fact that the

canal was subject to the ebb and flow of the tide was

sufficient to establish Corps’ jurisdiction even over a

private and artificial canal. That finding was not

clearly erroneous. |

The Corps has adopted the following 8

definitions of navigable waters of the United

States“:

Note 8 - Continued

sections may be enforced by the injunction of any

district court exercising jurisdiction in any district in

which such structures may exist, and proper pro-

ceedings to this end may be instituted under the direc-

tion of the Attorney General of the United States.

9. DeFelice conceded at trial that the canal is subject to the

FWPCA, therefore a discussion of the jurisdictional scope of

the FWPCA would not be dispositive of this case. ;

A-11

$329.3 General policies.

Precise definitions of navigable waters” or

navigability are ultimately dependent on

judicial interpretation, and cannot be made con-

clusively by administrative agencies. However,

the policies and criteria contained in this

regulation are in close conformance with the

tests used by the Federal Courts and deter-

minations made under this regulation are con-

sidered binding in regard to the activities of the

Corps of Engineers.

§ 329.4 General definition.

Navigable waters of the United States are

those waters that are subject to the ebb and

flow of the tide and/or are presently used, or

have been used in the past, or may be suscept-

ible for use to transport interstate or foreign

commerce. A determination of navigability,

once made, applies laterally over the entire sur-

face of the waterbody, and is not extinguished

by later actions or events which impede or

destroy navigable capacity.

§ 329.5 General scope of determination.

The several factors which must be examined

A-12

when making a determination whether a water-

body is a navigable water of the United States

are discussed in detail below. Generally, the

following conditions must be satisfied:

(a) Past, present, or potential

presence of interstate or foreign commerce;

(b) Physical capabilities for use by

commerce as in subparagraph (a) above; and

waterbody.

§ 329.8 Improved or natural conditions of the

waterbody.

Determinations are not limited to the natural

or original condition of the waterbody.

Navigability may also be found where artificial

[sic] aids have been or may be used to make the

waterbody suitable [sic] for use in navigation.

(a) Existing improvement: artificial [sic]

waterbodies. (1) An artifical [sic] channel may

often constitute a navigable water of the

United States, even though it has been private-

ly developed and maintained, or passes through

private property. The test is generally as

developed above, that is, whether the water-

body is capable of use to transport interstate

A-13

commerce. Canals which connect two

navigable waters of the United States and

which are used for commerce clearly fall within

the test, and themselves become navigable. A

canal open to navigable waters of the United

States on only one end is itself navigable where

it in fact supports interstate commerce. A

canal or other artifical [sic] waterbody that is

subject to ebb and flow of the tide is also a

navigable water of the United States.

(2) The artificial waterbody may be a major

portion of a river or harbor area or merely a

minor backwash, slip, or turning area. (See §

329.12(b).)

(3) Private ownership of the lands underly-

ing the waterbody, or of the lands through

which it runs, does not preclude a finding of

navigability. Ownership does become a con-

trolling factor if a privately constructed and

operated canal is not used to transport in-

terstate commerce nor used by the public; it

is then not considered to be a navigable water

of the United States. However, a private

waterbody, even though not itself navigable,

may so affect the navigable capacity of near-

by waters as to nevertheless be subject to

A-14

certain regulatory authorities.

33 CFR $ 329.4, 329.8(a)(1) (1979).

The Supreme Court recently quoted this defini-

tion with obvious approval in Kaiser Aetna v. United

States, 444 U.S. 164, 172 n.6, 100 S.Ct. 383, 388 n.6,

62 L.Ed.2d 332, 341 n.6, (1979). DeFelice, however, re-

jects the above definition of ‘‘navigability’’ and the

District Court’s apparent reliance on it to sustain

Corps’ jurisdiction. Instead, he maintains that the

canal waters are not navigable waters of the United

States because the canal in question is a (i) private

and artificial canal and (ii) there was no factual finding

to support a conclusion that the canal was a part of a

“continuous waterway sustaining interstate com-

merce. DeFelice suggests that the correct standard

‘of “‘navigability’’ should be a two-step finding of (i)

navigability in fact and (ii) connection with a con-

tinuous waterway system—neither of which was met

here. Moreover, he complains that jurisdiction should

not rest on the result of an illegal act—the wrongful

removal of the dam—which ultimately rendered the

canal navigable in fact.

[2] Neither the record nor case law supports

10. There is no evidence in the record for us to assume ti the

DeFelice family or anyone else actually owned the canal.

A-15

DeFelice’s idea that the Corps lacks jurisdiction

because the canal was artificial and are privately

owned. See, e.g., Kaiser Aetna v. United States, 444

U.S. 164, 100 S. Ct. 383, 62 L.Ed.2d 332 (1979)

(private waterway may come within term “navigable

waters of the United States if joining existing in-

terstate commerce waterway)’; United States v. Sax-

ton Cove Estates, Inc., 526 F.2d 1293 (5th Cir. 1976)

(private canals above the mean high line opening into

navigable waterway subject to Corps’ jurisdiction);

United States v. Joseph G. Moretti, Inc. 526 F.2d

1306 (5th Cir. 1976) (dredging of private canal

upstream subject to Corps’ jurisdiction where

navigable waters were affected downstream).

13] Applying Defelice’s suggested standard for

the moment, we find that the record does conclusively

demonstrate that Cheniere Traverse Canal is (i)

tidal—a fact stipulated to by both parties, (ii)

navigable in fact—has in the past, does presently or is

capable of supporting transportation in interstate or

foreign commerce, and (iii) connected with a con-

tinuous interstate waterway. Several witnesses who

had leased campsites along the canal beginning in the

early 1960's testified that their 28-30 foot Lafayette

Skiff type shrimping vessels were too large to safely

maneuver in other near-by water routes except in the

connecting canals of Cheniere Traverse, Timbers and

A-16

Wilkinson.". In addition, the same testimony with

the aid of United States Geological Survey Maps un-

mistakably demonstrates that these connecting

canals flow into the Gulf of Mexico and thus form a

part of a continuous interstate waterway system.“

11. In addition, we observe for clarity sake that there is no re-

quirement that a body of water sustain actual commerce in

order to meet the test of navigabilty in fact. Weizmann v. Dist.

Eng., U.S. Army Corps of Engineers, 526 F.2d 1302, 1305 (5th

Cir. 1976). E.g., United States v. Diamond, 512 F.2d 157, 160

(5th Cir.), cert. denied, 423 U.S. 928, 96 S.Ct. 275, 46 L.Ed.2d

255 (1975). Rather, judicial interpretation recognizes that

“mere capability of commercial use of a body of water suffices

even if such commerce could be made possible with artificial

aid. United States v. Appalachian Power Co, 311 U.S. 377,

407, 61 S.Ct. 291, 299, 85 L.Ed. 243, 252 (1940). This idea was

recognized as early as 1921 in Economy Light and Power Co. v.

United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921).

[A] river having the actual navigable capacity in its

natural state and capable of carrying commerce among

the states is within the power of Congress to preserve

for purposes of future transportation, even though it is

not at present used for such commerce, and be in-

capable of such use according to present methods,

either by reason of changed conditions or because of ar-

tificial obstructions . . The act in terms applies to

“any ... navigable river, or other navigable body of

water of the United States“; and, without doing

violence to its manifest purpose, we cannot limit its

prohibition to such navigable waters as were, at the

time of its passage, or now are, actually open to use.

12. The record reflects the following geographical description:

The canal is connected to Barataria Bay and the Gulf of Mex-

ico which are tidal waterbodies and commercial waterways, by

way of Wilkinson Canal, a waterway that runs in a north-south

direction between Bayou Barataria and Myrtle Grove, Loui-

siana. The Wilkinson Canal runs through Plaquemines Parish

wetlands, lakes, and bayous, particularly Bayou Dupont. This

waterway is approximately 12.5 miles in length. The Timber

Canal, which runs in an easterly-westerly direction connects

with and crosses the Wilkinson Canal about three-quarters

(0.75) of a mile south of Louisiana Highway 23 at Myrtle Grove,

Louisiana. The Timber Canal connects with the canal, known

A-17

[4] In reaching its decision the District Court

relied on United States v. Stoeco Homes, Inc., 498

F.2d 597 (3d Cir. 1974) which holds that once the ar-

tificial canals are connected to tidal water bodies, it

and all its inland artificial tributaries become

“navigable waters of the United States“ by operation

of law. Stoeco, 498 F.2d at 611. This Court has fol-

lowed that concept in the case of United States v. Sax-

ton Cove Estates, Inc, 526 F.2d 1293 (5th Cir. 1976),

where Corps’ jurisdiction was upheld over five canals

connecting to Black Water Sound which was a tidal

water body. In urging this Court to adopt the two-

step test for ‘‘navigability’’, DeFelice has apparently

confused the requirements of navigable waters of the

United States” for tidal coastal waters, with the re-

quirements for non-tidal inland waters. We make this

assumption because of the cases which DeFelice relies

on in support of this proposition.“ These cases are in-

applicable because they deal with landlocked, non-

Note 12 - Continued

locally as the Cheniere Traverse Canal or West Canal, approx-

imately one and two tenths (1.2) of a mile easterly from the

Wilkinson Canal. The site of the unauthorized canal closure in

the Cheniere Traverse (or West) Canal is about two hundred

(200) feet east of the Canal’s junction with the Timber Canal.

13. The Court in Minnehaha Creek Watershed Dist. v. Hoff-

mann, 597 F.2d 617 (8th Cir. 1978) found that there was no

RHA jurisdiction over a non-tidal inland lake located entirely

within one state, Minnesota, and with only one outlet to the

Mississippi River which had been continuously dammed since

1852. The Court based its holding upon the lack of an interstate

waterway connection. Similarly, in National Wildlife Federa-

tion v. Alexander, 613 F. 2d 1054 (D.C. Cir. 1979), the Court held

that a historical navigable, non-tidal, landlocked lake located in

North Dakota was not subject to § 10 of RHA.

A-18

tidal water bodies where the Courts have generally re-

quired a connection with other interstate waterways"

unless the waterway is in fact navigated regularly by

vessels in commerce. As previously established

Cheniere Traverse Canal is not landlocked, and is

tidal. Tidal waters by their very nature form a con-

tinuous water body with interstate waterways. Re-

quiring tidal water bodies to meet the test for non-

tidal, navigable in fact water bodies (which coinci-

dentally they do here anyway) is really to eliminate

the ebb and flow test. The law is to the contrary

because even shallow tidal areas, like sloughs or

marshes below the elevation of a mean high water line,

are subject to regulation under the 1899 RHA. Stoeco

Homes, 498 F.2d at 597.“

14. The inapplicability of these two cases (see n. 13, supra) is

further highlighted by DeFelice's reliance on the cases of The

Daniel Ball, 77 U.S. (10 Wall) 557, 19 L.Ed. 999 (1870), and The

Genesee Chief, 53 U.S. (12 How.) 443, 13 L.Ed. 1058 (1851)

which dealt with expanding admiralty jurisdiction beyond

coastal tide waters to the inland non-tidal rivers of the United

States. These cases did not reject the tidal theory over coastal

waters. Rather, the Court chose not to apply it because that

would have unduly limited jurisdiction over inland waters.

15. There are numerous cases holding that ebb and flow of the

tide is a valid test of navigability of tidal waters for the Corps’

jurisdiction under RHA. See Kaiser Aetna v. United States,

444 U.S. 164, 100 S.Ct. 383, 62 L.Ed. 2d 332 (1979); United

States v. Stoeco Homes, Inc., 498 F.2d 597 (3rd Cir. 1974);

Leslie Salt Co. u. Froehlke, 578 F. 2d 742 (9th Cir. 1978); Tatum

v. Blackstone, 319 F.2d 397 (5th Cir. 1963); United States v.

Saxton Co. Estates, Inc., 526 F.2d 1293 (5th Cir. 1976).

A-19

[5] We conclude that the District Court applied

the correct standard of ‘“‘navigability’”’ in this case“

and that Cheniere Traverse Canal by 1965 or 1966

became navigable by operation of law, because (i) it

was subject to ebb and flow and (ii) navigable in fact

because it was an arm in the flow of interstate com-

merce to the Gulf of Mexico.

Rising Waters?—Dam Not

“Currently Serviceable”

[6, 7] The second point which DeFelice

challenges concerns the Corps’ interpretation of the

phrase ‘‘currently serviceable” in the regulation as it

applies to an exemption to the permit requirements

found in 33 CFR g 322.4(c). (See Appendix I). The real

question is can a dam which disappeared no later than

1966 be considered currently serviceable” within the

meaning of the 1977 regulation? We think not.

Government witnesses testified that the Corps’ inter-

pretation of currently serviceable’ means that the

16. The Supreme Court recently conceded in Kaiser Aetna,

that precedent does not disclose a single test or standard for

navigability, but instead recognizes several distinct tests, (i)

ebb and flow, (ii) connection with a continuous interstate water-

way, (iii) navigable capacity, and (iv) navigable in fact. 444 U.S.

at 170-172, 100 S.Ct. at 387-389, 62 L.Ed.2d at 340-41.

17. Having illustrated that Corps jurisdiction occurred by

operation of law, we find no merit in DeFelice’s argument that

jurisdiction was improperly created due to an unauthorized or

illegal act. Besides, DeFelice presented no evidence at trial per-

taining to this issue and on appeal has failed to cite any law to

support his position.

A-20

structure was providing the service for which it was

intended at the existing time. The Corps uses a rule of

reasonableness as to how soon after a work or struc-

ture is torn out it must be replaced. A reasonable

length of time is defined as a time period in which

there could have been no real change in circumstances

surrounding the structure. If an otherwise Corps

regulated structure exists and performs a service, it

may normally be maintained and repaired without in-

dividual § 10 or § 404 permits. If not, an individual

permit is normally needed first, and any changed cir-

cumstance since the structure’s last existence will be

carefully weighed. This balanced approach is clearly

reasonable. The record here indicates that there had

been real changes in circumstances at the dam site.

After the prior dam was removed, there was an influx

of campers and fishermen who invested in campsites

and boats for their pleasure as well as commercial

fishing based on the navigability of the canal. Con-

sidering the facts (i) changed circumstances, and (ii)

that prior to DeFelice’s attempt to ever bring suit, the

dam had not been in existence for at least nine years,

the Court upheld the Corps’ interpretation of its

regulations as a reasonable one. The reasonable inter-

pretation by an agency of its own regulations is al-

lowed great deference. Udall uv. Tallmann, 380 U.S. 1,

85 S. Ct. 792, 13 L.Ed.2d 616 (1955), Soliz v. Plunkett,

615 F.2d 272 (5th Cir. 1980); Kinnett Dairies, Inc. v.

A-21

Farrow, 580 F.2d 1260 (5th Cir. 1978); Bone v. Hiber

nia Bank, 493 F.2d 135 (5th Cir. 1974). The District

Court’s finding that this interpretation is reasonable

is another way of saying it was not arbitrary,

capricious or an abuse of discretion. we affirm this fin-

ding as well.

18. Related to the above argument, that De Felice is exempt by

regulation from obtaining the permit required by § 10 of the

RHA of 1899, is the argument by DeFelice that he is exempt by

regulations from obtaining a permit required by § 404 of the

FWPCA, 33 U.S.C.A. 1344 (see n.4, supra). DeFelice admits

that the permit required by 33 U.S.C.A. § 1344 would be ap-

plicable to the fill he was dumping into the canal but for an

alleged exemption in the regulation. DeFelice relies on 33 CFR

209.1 20e(2)(iii) (1976) which language was carried over into the

1977 regulations.

209.120 Permits for activities in Navigable Waters or

Ocean Waters.

(e) Activities Requiring Authorizations. (1) Struc

tures or work in navigable waters of the United States.

Department of the Army authorizations are required

under the River and Harbor Act of 1899 (See

paragraph (b) of this section) for ail structures or work

in navigable waters of the United States except for

bridges and causeways (see Appendix A), the place-

ment of aids to navigation by the U.S. Coast Guards,

structures constructed in artificial canals within prin-

cipally residential developments where the canal has

been connected to a navigable water of the United

States (see paragraph (i) of this section). and ac-

tivities that were commenced or completed shoreward

of established harbor lines before May 27, 1970 (see

333 CFR § 209.150) other than those activities involv-

ing the discharge of dredged or fill material in

navigable waters after October 18, 1972.

(2) Discharges of dredged material or of fill material in-

to navigable waters. (i) Except as provided in sub-

paragraphs (2)ii) and (iii) of this paragraph, Depart-

ment of the Army permits will be required for the

discharge of dredged material or of fill material into

navigable waters in accordance with the following

phased schedule:

A-22

(iii) Discharges of dredged or fill material in waters

other than navigable waters of the United States that

have been completed by the effective date of this

regulation and discharges of dredged or fill material of

less than 500 cubic yards into waters other than

navigable waters of the United States that are part of

an activity that was commenced before the publication

of this regulation, that will be completed within six

months of the publication of this regulation, and that

invelves a single and complete project and not a

aumber of projects associated with complete develop-

ment plans are hereby authorized for purposes of Sec-

tion 404 of the Federal Water Pollution Control Act

without further processing under this regulation: Pro-

vided, however, That the exemption of these types of

activities from the requirements of this regulation

shall not be construed as a waiver of the requirement to

obtain a State water quality certification under section

401 of the Federal Water Pollution Control Act or a cer-

tification of compliance with a State's approved

coastal zone management program pursuant to section

307 ch) of the Coastal Zone Management Act in those

cases where the discharge of dredged or fill material

has not been completed by the date of this regulation:

And further provided, That the procedures of this

regulation shall apply to any activity involving the

discharge of dredged or fill material commenced before

the date of this regulation if the District Engineer

determines that the interests of water quality as ex-

pressed in the guidelines (see 40 CFR Part 230) so re-

quire. The term commenced' as used herein shall be

satisfied if there has been, before the date of this

regulation, some discharge of dredged or fill material

into the navigable water as a part of the above activity

or an entering into of a written contractual obligation

to have the dredged or fill material discharged at a

designated disposal site by a contractor.

This regulation is obviously inapplicable. It provides that

discharges of fill material, completed prior to the effective date

of the regulation, into waters other than navigable waters of

the United States that were part of an activity which com-

menced before the publication of the regulation, that will be

A-23

DeFelice’s action in placing fill materials into the

Cheniere Traverse Canal—a navigable water of the

United States — without a permit, evoked the Corps’

jurisdiction and constituted a clear violation of RHA

and FWPCA. Because we find no applicable exemp-

tions in this case to the permit requirements, we

uphold the District Court in all of its findings and

judgment.

AFFIRMED.

Note 18 - Continued

completed within six months of the publication of this regula-

tion are authorized for purposes of § 404 FWPCA. DeFelice’s

activities were neither completed before the effective date of the

regulation, nor started six months before publication of the

regulation. Nor was the discharge into waters other than a

navigable waters of the United States.”

Substantially the same permission for replacement of any

previously authorized, currently serviceable fill” is applicable

to § 404 of the FWPCA, as was applicable to permits required

under § 10 of the RHA of 1899. However, for the same reasons

as those stated in the text above, the fill deposited by DeFelice

in July 1977 would not be replacement of currently ser-

viceable fill for purposes of § 404 of the FWPCA for the same

reason it was not currently serviceable’’ for purposes of § 10

permit. It is clear that DeFelice is not exempt from the permit.

It is clear that DeFelice is not exempt from the permit require-

ment by § 404 FWPCA. Therefore, this is an independent

ground to support the judgment of the District Court.

DeFelice also argues that the regulations published July 19,

1977, 42 Fed. Reg. 37122 et seq., are inapplicable because they

could not go into effect for thirty days after publication. This

argument is irrelevant because the District Court has deter-

mined, as we do, that DeFelice violated the statutes, §§ 9, 10 of

the RHA and 8§ 404 of the FWPCA, which must stand even if

there were no regulations involved.

A-24

APPENDIX I

After July 19, 1977, the following regulations, 33

C.F.R. 320, 321, 322, 323, in pertinent part, were in ef-

fect:

PART 320—GENERAL REGULATORY POLICIES

Sec.

320.1 Purpose and scope.

$20.2 Authorities to issue permits.

320.3 Related legislation.

320.4 General policies for evaluating permit ap-

plications

AUTHORITY: 33 U.S.C. 401 et.seq.; 33 U.S.C.

1344; 33 U.S.C. 1413.

SOURCE: 42 FR 37133, July 19, 1977, unless

otherwise noted.

§ 320.1 Purpose and scope.

(a) Types of activities regulated. This regulation

and the regulations that follow (33 CFR 321—329)

prescribe the statutory authorities, and general and

special policies and procedures applicable to the

A-25

review of applications for Department of the Army

permits for various types of activities that occur in

waters of the United States or the oceans. This part

identifies the various Federal statutes that require

Department of the Army permits before these ac-

tivities can be lawfully undertaken; the related

Federal legislation applicable to the review of each ac-

tivity that requires a Department of the Army permit;

and the general policies that are applicable to the

review of all activities that require Department of the

Army permits. Parts 321—324 address the various

types of activities that require Departament of the

Army permits, including special policies and pro-

cedures applicable to those activities as follows:

(1) Dams or dikes in navigable

waters of the United States (Part 321);

(2) All other structures or work in-

cluding excavation, dredging, and/or disposal ac-

tivities, in navigable waters of the United States (Part

322);

(3) All activities that alter or

modify the course, condition, location, or capacity of a

navigable water of the United States (Part 322);

(4) Construction of fixed structrues

A-26

and artificial islands on the outer continental shelf

(Part 322);

(5) All discharges of dredged or fill

material into the waters of the United States (Part

323); and

(6) All activities involving the

transportation of dredged material for the purpose

dumping it in ocean waters (Part 324).

** „

“navigable waters of the United States”’ and waters

of the United States“ are used frequently throughout

these regulations, and it is important that the reader

understand the difference from the outset.

“Navigable waters of the United States“ are defined

in 33 CFR 329. These are the traditional waters where

permits are required for work or structures pursuant

to sections 9 and 10 of the River and Harbor Act of

1899. Waters of the United States“ are defined in 33

CFR 323.2(a). These waters include more than

navigable waters of the United States and are the

waters where permits are required for the discharge of

dredged or fill material pursuant to section 404 of the

Federal Water Pollution Control Act Amendments of

1972.

** „ „ „„

A- 27

§ 320.2 Authorities to issue permits.

(a) Section 9 of the River and Harbor Act ap-

proved March 3, 1899 (30 Stat. 1151; 33 U.S.C. 401)

(hereinafter referred to as Section 9) prohibits the con-

struction of any dam or dike across any navigable

water of the United States in the absence of Congres-

sional consent and approval of the plans by the Chief

of Engineers and the Secretary of the Army. Where

the navigable portions of the waterbody lie wholly

within the limits of a single State, the structure may

be built under authority of the legislature of that

State, if the location and plans or any modification

thereof, are approved by the Chief of Engineers and

by the Secretary of the Army. The instrument of

authorizaton is designated a permit. Section 9 also

pertains to bridges and causeways but the authority

of the Secretary of the Army and Chief of Engineers

with respect to bridges and causeways was transfer-

red to the Secretary of Transportation under the

Department of Transportation Act of October 15,

1966 (80 Stat. 941, 49 U.S.C. 1155g(6)(A)). See also 33

CFR Part 321. A Department of the Army authoriza-

tion is required for the discharge of dredged or fill

material into waters of the United States associated

with bridges and causeways pursuant to Section 404

of the Federal Water Pollution Control Act Amend-

ments of 1972 (33 U.S.C. 1344). See CFR Part 323.

A-28

(b) Section 10 of the River and Harbor Act ap-

proved March 3, 1899 (30 Stat. 1151; 33 U.S.C. 403)

(hereinafter referred to as section 10) prohibits the

unauthorized obstruction or alteration of any

navigable water of the United States. The construc-

tion of any structure in or over any navigable water of

the United States, the excavation from or depositing

of material in such waters, or the accomplishment of

any other work affecting the course, location, condi-

tion, or capacity of such waters, is unlawful unless the

work has been recommended by the Chief of

Engineers and authorized by the Secretary of the

Army. The instrument of authorization is designated

a permit, general permit, or letter of permission. The

authority of the Secretary of the Army to prevent

obstructions to navigation in the navigable waters of

the United States was extended to artificial islands

and fixed structures located on the outer continental

shelf by Section (4)(f) of the Outer Continental Shelf

Lands Act of 1953 (67Stat. 463; 43 U.S.C. 1333(f)). See

also 33 CFR Part 322.

S „ „ » & #8

(g) Section 404 of the Federal Water Pollution

Control Act Amendments of 1972 (PL 92-500, 86 Stat.

A-29

816, 33 U.S.C. 1344) (hereinafter referred to as Section

404) authorizes the Secretary of the Army, acting

through the Chief of Engineers, to issue permits, after

notice and opportunity for public hearings, for the

discharge of dredged or fill material into the waters of

the United States at specified disposal sites. See 33

CFR 323. The selection and use of disposal sites will

be in accordance with guidelines developed by the Ad-

ministrator of the Environmental Protection Agency

(EPA) in conjunction with the Secretary of the Army,

published in 40 CFR Part 230.

R W K * *&

33— Navigation and Navigable Waters

PART 321—PERMITS FOR DAMS AND DIKES

IN NAVIGABLE WATERS OF THE UNITED

STATES

Sec.

321.1 General.

321.2 Definitions.

321.3 Special policies and procedures.

AUTHORITY: 33 U.S.C. 401.

SOURCE: 42 FR 37138, July 19, 1977 unless other-

wise noted.

A-30

§ 321.3 Special policies and procedures.

The following additional special policies and pro-

cedures shall be applicable to the evaluation of permit

applications under this regulation:

(a) The Secretary of the Army will decide whether

Department of the Army authorization for a dam or

dike in a navigable water of the United States will be

issued, since this authority has not been delegated to

the Chief of Engineers. The conditions to be imposed

in any instrument of authorization will be recom-

mended by the District Engineer when he forwards

his report to the Secretary of the Army, through the

Chief of Engineers, pursuant to 33 CFR 325.11

(b) A Department of the Army application under

Section 9 will not be processed until the approval of

the United States Congress has been obtained if the

navigable water of the United States is an interstate

waterbody, or until the approval of the appropriate

State legislature has been obtained if the navigable

water of the United States is solely within the bound-

daries of one State.

PART 322—PERMITS FOR STRUCTURES OR

WORK IN OR AFFECTING NAVIGABLE

WATERS OF THE UNITED STATES

A-31

Soc.

322.1 General.

322.2 Definitions.

3922.3 Activities requiring permits.

322.4 Structures and work permitted by this

regulation.

322.5 Special policies and procedures.

Appendix A- U.S. Coast Guard / Chief of Engineers

Memorandum of Agreement.

Appendix B- Delegation of Authority.

AUTHORITY: 33 U.S. C. 403.

SOURCE: 42 FR 37139, July 19, 1977, unless other-

wise noted.

§ 322.3 Activities requiring permits.

(a) General. Department of the Army permits are

required under Section 10 for all structures or work in

or affecting navigable waters of the United States ex-

cept for bridges and causeways (see Appendix A) and

structures or work licensed under the Federal Power

Act of 1920. Activities that were commenced or com-

pleted shoreward of established Federal harbor lines

before May 27, 1970 (see 33 CFR Part 328) also do not

require Section 10 permits; However, if those ac-

tivities involve the discharge of dredged or fill

A-32

material into waters of the United States after Oc-

tober 18, 1972, a Section 404 permit is required (see 33

CFR Part 323).

(1) Structures or work are in the navigable waters

of the United States if they are within limits defined

in 33 CFR Part 329. Structures or work outside these

limits are subject to the provisions of law cited in

paragraph (a) above, if these structures or work affect

the course, location, or condition of the waterbody in

such a manner as to impact on the navigable capacity

of the waterbody. For purposes of a Section 10 per-

mit, a tunnel or other structure under or over a

navigable water of the United States is condsidered to

have an impact on the navigable capacity of the water-

body.

§ 322.4 Structures and work permitted by this regula-

tion.

The following structures or work are hereby per-

mitted for purposes of Section 10 and do not require

separate Department of the Army permits:

(a) The placement of aids to navigation by the

U.S. Coast Guard, see § 322.5(e), below;

A-33

(b) Structures constructed in artificial canals

within principally residential developments where the

connection of the canal to a navigable water of the

United States has been previously authorized; see §

322.5(G), below;

any previously authorized, currently serviceable,

structure, or of any currently serviceable structure

constructed prior to the requirement for authoriza-

tion; provided such repair, rehabilitation, or replace

-ment does not result in a deviation from the plans of

the original structure, and further provided that the

structure to be maintained has not been put to uses

differing from used specified for it in any permit

authorizing its original construction;

(d) Marine life harvesting devices such as pound

nets, crab traps, eel pots, lobster traps, provided there

is no interference with navigation;

(e) Staff gages, tide gages, water recording

devices, water quality testing and improvement

devices, and similar scientific structures provided

there is no interference with navigation;

(f) Survey activities including core sampling; and

A-34

(g) Structures or work completed before 18

December 1968 or in waterbodies over which the

District Engineer has not asserted jurisdiction pro-

vided there is no interference with navigation.

§ 322.5 Special policies.

The Secretary of the Army has delegated to the

Chief of Engineers the authority to iesue or deny Sec-

tion 10 permits. (See Appendix B.) The following ad-

ditional special policies and procedures shall also be

applicable to the evaluation of permit applications

under this regulation.

(a) General. Department of the Army permits will

be required for structures or work in or affecting

navigable waters of the United States. Certain struc-

tures or work specified in § 322.4 are permitted by this

regulation. If a structure or work is not permitted by

this regulation, an individual or general Section 10

permit will be required.

of the impact of the proposed work on navigation and

national security. The public notice will so identify

the criteria.

A-35

(g) Canals and other artificial waterways con-

nected to navigable waters of the United States. (1) A

Canal or similar artificial waterway is subject to the

regulatory authorities discussed in § 322.3, above, if it

constitutes a navigable water of the United States , or

if it is connected to navigable waters of the United

States in a manner which affects their course, condi-

tion, or capacity. In all cases the connection to

navigable waters of the United States requires a per-

mit. Where the canal itself constitutes a navigable

water of the United States, evaluation of the permit

application and further exercise of regulatory author-

ity will be in accordance with the standard procedures

of this regulation. For all other canals the exercise of

regulatory authority is restricted to those activities

which affect the course, condition, or capacity of the

navigable waters of the United States. Examples of

the latter may include the length and depth of the

canal; the currents, circulation, quality and turbidity

of its waters, especially as they affect fish and wildlife

values; and modifications or extensions of its con-

figuration.

PART 323—PERMITS FOR DISCHARGES OF

DREDGED OR FILL MATERIAL INTO

WATERS OF THE UNITED STATES

Sec.

323.1 General.

A-36

323.2 Definitions

323.3 Activities requiring permits.

323.4 Discharges permitted by this regulation.

323.4—1 Discharges prior to effective dates of

phasing.

323.4—2 Discharges into certain waters of the United

States.

323.4—3 Specific categories of discharges.

323.4—4 Discretionary authority to require individual

or general permits.

323.5 Special policies and procedures.

Appendix A—Delegation of authority.

AUTHORITY: 33 U.S.C. 1344.

SOURCE: 42 FR 37144, July 19, 1977, unless other-

wise noted.

§ 323.2 Definitions.

For the purpose of this regulation, the following

terms are defined:

(a) The term waters of the United States“

means:'

(1) The territorial seas with respect to

1. The terminology used by the FWPCA is “navigable

waters which is defined in Section 502(7) of the Act as waters

of the United States including the terriorial seas. For pur-

poses of clarity, and to avoid confusion with other Corps of

Engineers regulatory programs, the term waters of the United

States is used throughout this regulation.

A-37

the discharge of fill material. (The transportation of

dredged material by vessel for the purpose of dump-

ing in the oceans, including the territorial seas, at an

ocean dump site approved under 40 CFR 228 is

regulated by Section 103 of the Marine Protection,

Research and Sanctuaries Act of 1972, as amended (33

U.S.C. 1413). See 33 CFR 324. Discharges of dredged

or fill material into the territorial seas are regulated

by Section 404.):

(2) Coastal and inland waters, lakes,

rivers, and streams that are navigable waters of the

United States, including adjacent wetlands;

(3) Tributaries to navigable waters of

the United States, including adjacent wetlands (man-

made nontidal drainage and irrigation ditches ex-

cavated on dry land are not considered waters of the

United States under this definition.)

(4) Interstate waters and their

tributaries, including adjacent wetlands; and

(5) All other waters of the United States

not identified in paragraphs (1)—(4) above, such as

isolated wetlands and lakes, intermittent streams,

prairie potholes, and other waters that are not part of

tributary system to interstate waters or to navigable

waters of the United States, the degradation or

A-38

destruction of which could affect interstate com-

merce.

2. In defining the jurisdiction of the FWPCA as the waters of

the United States. Congress, in the legislative history to the

Act, specified that the term be given the broadest constitu-

tional interpretation unencumbered by agency determinations

which would have been made or may be made for administrative

purposes. The waters listed in paragraphs (a)1)—(4) fill within

this mandate a discharges into those waterbodies may seriously

affect water quality, navigation, and other Federal interests;

however, it is also recognized that the Federal government

would have the right to regulate the waters of the United States

identified in paragraph (a5) under this broad Congressional

mandate to fulfill the objective of the Act: to restore and main-

tain the chemical, physical, and biological integrity of the Na-

tion's waters (Section 101(a)). Paragraph (a)(5) incorporates all

other waters of the United States that could be regulated under

the Federal government's Constitutional powers to regulate

and protect interstate commerce, including those for which the

connection to interstate commerce may not be readily obvious

or where the location or size of the waterbody generally may not

require regulation through individual or general permits to

achieve the objective of the Act. Discharges of dredged or fill

material into waters of the United States identified in

paragraphs (a)(1)(4) will generally require individual or general

permits unless those discharges occur beyond the headwaters of

a river or stream or in natural lakes less than 10 acres in surface

area. Discharges into these latter waters and into most of the

waters identified in paragraph (a)(5) will be permitted by this

regulation, subject to the provisions listed in paragraph

323.4—2(b) unless the District Engineer develops information,

on a case-by-case basis, that the concerns for aquatic environ-

ment as expressed in the EPA Guidelines (40 CFR 230) require

regulation through an individual or general permit. (See

323.4—4).

A-39

Title 33—Navigation and Navigable Waters

The landward limit of jurisdiction in tidal waters,

in the absence of adjacent wetlands, shall be the high

tide line and the landward limit of jurisdiction and all

other waters, in the absence of adjacent wetlands,

shall be the ordinary high water mark.

(b) The term‘‘navigable waters of the United

States“ means those waters of the United States that

are subject to the ebb and flow of the tide shoreward

to the mean high watermark (mean higher high water

on the Pacific Coast) and/or are presently used, or

have been used in the past, or may be susceptible to

use to transport interstate or foreign commerce. (See

33 CFR 329 for a more complete definition of this

term.)

es „ „ & ©

m) The term fill material means any material

used for the primary purpose of replacing an aquatic

area with dry land or of changng the bottom elevation

of a waterbody. The term does not include any pollu-

tant discharged into the water primarily to dispose of

waste, as that activity is regulated under Section 402

of the Federal Water Pollution Control Act Amend-

ments of 1972.

A-40

n) The term discharge of fill material’ means

the addition of fill material into waters of the United

States. The term generally includes, without limita-

tion, the following activities: Placement of fill that is

necessary to the construction of any structure in a

water of the United States; the building of any struc-

ture or impoundment requiring rock, sand, dirt, or

other material for its construction; site development

fills for recreational, industrial, commercial, residen-

tial, and other used causeways or road fills; dams and

dikes; artificial islands; property protection and/or

reclamation devices such as riprap, groins, seawalls,

breakwaters, and revetments; beach nourishment;

levees; fill for structures such as sewage treatment

facilities, in take and outfall pipes associated with

power plants and subaqueous utility lines; and ar-

tificial reefs. The term does not include plowing,

cultivating, seeding and harvesting for the production

of food, fiber, and forest products.

„ „ „ „ „ *

9323.3 Discharges requiring permits.

(a) General. Department of the Army permits will

be required for the discharge of dredged or fill

material into waters of the United States. Certain

A-41

discharges specified in §§ 323.4—1, 323.4—2, and

323.4—3 are permitted by this regulation. If a dis-

charge of dredged or fill material is not permitted by

this regulation, an individual or general Section 404

permit will be required for the discharge of dredged

or fill material into waters of the United States in ac-

cordance with the following phased schedule:

(1) Before July 25, 1975, discharges into

navigable waters of the United States.

(2) After July 25, 1975, discharges into

navigable waters of the United States and adjacent

wetlands.

(3) After September 1, 1976, discharges

into navigable waters of the United States and their

primary tributaries, including adjacent wetlands, and

into natural lakes, greater than 5 acres in surface area.

(See also § 323.4—2 for discharges that are permitted

by this regulation.)

(4)After July 1, 1977, discharges

into all waters of the United States. (See also g

323.4-2 for discharges that are permitted by this

regulation.

(b) Individual permits. Unless permit-

ted by this regulation (§§ 323.4—1, 323.4—2 and

323.4—3) or authorized by general permits (§ 323.3(c)),

the discharge of dredged or fill material into waters of

the United States will require an individual Depart-

ment of the Army permit issued in accordance with

the policies in § 320.4 and procedures in 33 CFR Part

325.

A-42

R *+ „ * *

§ 323.4 Discharges permitted by this regulation.

(a) General. Discharges of dredged or

fill material specified in §§ 323.4—1, 323.4—2 and

323.4—3, below are hereby permitted for purposes of

Section 494 without further processing under this

regulation (individual applications are not needed), ex-

cept as provided in § 323.4—4 below. Permits may,

however, be required under Section 10 of the River

and Harbor Act of 1899 (see 33 CFR 32). Sections

323.4—1, 323.4—2, and 323.4—3 do not obivate the re-

quirement to obtain State or local assent required by

law for the activities permitted therein.

$323.4—1 Discharges prior to effective dates

of phasing.

(a). Discharges of dredged or fill

material in waters of the United States that occur

before the phase-in dates specified in § 323.3(a)(2)—(4)

above are hereby permitted for purposes of Section

404, provided the conditions in paragraph (c) below

are met.

(b) Discharges of dredged or fill

material of less than 500 cubic yards into waters other

than navigable waters of the United States (see 33

A-43

CFR 329) that are part of an activity that was com-

menced before July 25, 1975, that were completed by

January 25, 1976, and that involve a single and com-

plete project and not a number of projects associated

with a complete development plan are hereby permit-

ted for purposes of Section 404, provided the condi-

tions in paragraph (e) below are met. The term com-

menced”’ as used herein shall be satisfied if there has

been, before July 25, 1975, some discharge of dredged

or fill material as a part of the above activity or an

entering into of a written contractual obligation to

have the dredged or fill material discharged at a

designated disposal site by a contractor

following conditions must have been satisfied for the

discharges occurring before the dates specified in

paragraph (a) and (b) above:

(1) That the discharge was not located

in the proximity of a public water intake;

(2) That the discharge did not contain

unacceptable levels of pathogenic organisms in areas

used for recreation involving physical contact with

the water;

(3) That the discharge did not occur in

areas of concentrated shellfish production; and

(4) That the discharge did not destroy

or endanger the critical habitat or a threatened or en-

dangered species, a identified under the Endangered

Species Act.

A-44

§ 323.4—3 Specific categories of discharges.

(a) The following discharges of dredged

or fill material into waters of the United States are

hereby permitted for purposes of Section 404, pro-

vided the conditions specified in this paragraph and

paragraph (b) below are met:

R * * © & &

(5) The repair, rehabilitation or replace-

ment of any previously authorized, currently ser-

viceable fill, or of any currently serviceable fill

discharged prior to the requirement for authorization;

provided such repair, rehabilitation or replacement

does not result in a deviation from the specifications

of the original work, and further provided that the fill

to be maintained has not been put to uses differing

from uses specified for it in any permit authorizing its

original construction.

B-1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA CIVIL ACTION

VERSUS 78-2200

SAVARE DeFELICE SECTION “J”

JUDGMENT

For the written reasons attached hereto,

IT IS ORDERED, ADJUDGED AND

DECREED, that there be judgment rendered herein

in favor of plaintiff, United States of America, and

against defendant, Savare DeFelice, ordering defend-

ant to restore the canal to its original depth and con-

tour prior to the commencement of defendant's

unauthorized activity within ninety (90) days from the

date of this judgment.

IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that defendant is enjoined from fur-

ther construction of a passageway across the canal

without first obtaining approval and authority from

the Department of the Army Corps of Engineers.

IT IS FURTHER ORDERED, ADJUDGED

AND DECREED that defendant shall bear all costs

of these proceedings.

B-2

New Orleans, Louisiana, this the 28 day of

February, 1980.

/S/ Signed (illegible)

UNITED STATES DISTRICT JUDGE

B-3

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

UNITED STATES OF AMERICA CIVIL ACTION

VERSUS NO, 78-2200

SAVARE DeFELICE SECTION “J”’

REASONS FOR JUDGMENT

On February 26, 1944, Esteff DeFelice purchased

property for the DeFelice Land Corporation from

Citrus Lands of Louisiana. Included in the agreement

was a right of access through Citrus Lands’ property

across a canal. In existence at the time of the sale was

a dam which crossed the canal and which led to the

DeFelice property. Eventually, Citrus Lands of Loui-

siana was purchased by Mr. Louis Roussel. Subs

quently, Mr. Roussel denied the DeFelice family their

right of access. Over a period of time from 1960 to

about 1965 or 1966, the dam was completely removed

from the canal by persons unknown. The defendant,

Mr. Savare DeFelice, negotiated unsuccessfully with

Mr. Roussel until 1971 in the attempt to reestablish

the right of access. Eventually, in 1974, Mr. DeFelice

filed suit in the district court in Plaquemines Parish.

The litigation culminated in 1976 when the Fourth

Circuit Court of Appeals of Louisiana held that the

DeFelice family had a right of access at the point

B-4

where access had previously been exercised.

On July 17, 1977, the defendant, Savare

Defelice, by his own acknowledgment, sought to

replace the dam by placing sand in the canal without

having obtained a permit from the Army Corps of

Engineers. The United States Government, filed suit

seeking to restore the canal, to enjoin the defendant

from further unauthorized placing of fill material in

the canal and to impose a civil penalty.

Trial in this matter was held January

30th and 31st, 1980. This Court, having fully con-

sidered the verified complaint herein, the evidence ad-

duced in the form of oral testimony and exhibits, the

statutes and regulations at issue and the argument of

counsel for both sides, hereby makes the following fin-

dings of fact and conclusions of law:

The Court finds that it has subject mat-

ter jurisdiction pursuant to the federal questions in-

volved and due to the fact that the United States is

the plaintiff.

Plaintiff contends that the canal in

question is subject to the Rivers and Harbors Act of

1899 and the Federal Water Pollution Control Act and

the respective permit requirements since the canal is

navigable. The defendant concedes that the canal is

B-5

subject to the Federal Water Pollution Control Act

but contends that the Rivers and Harbors Act is inap-

plicable because the canal was not navigable in fact at

the time of the destruction of the original dam. The

Court finds that jurisdiction over the canal under the

Rivers and Harbors Act existed by operation of law

from the time that it became capable of navigation,

i.e. around 1965 or 1966. See United States v. Stoeco

Homes, Inc., 498 F. 2d 597 (3rd Cir., 1974).

The testimony of Government witnes-

ses revealed that the Army Corps of Engineers by

1974 or 1975 had interpreted their regulations to

grant jurisdiction over canals subject to the ebb and

flow of the tide. The parties stipulated that the canal

in question is subject to the ebb and flow of the tide.

Defendant’s argument that the canal is private and

artificial cannot negate jurisdiction under the Rivers

and Harbors Act once the capability of navigability in

commercial use and/or the fact that the water is sub-

ject to the ebb and flow of the tide is established. See

Weizmann v. District Engineer, 526 F.2d 1302 (5th

Cir., 1976).

Section 9 of the Rivers and Harbors

Act, 33 U.S.C. 401 provides that:

“It shall not be lawful to construct or com-

mence the construction of any bridge, dam, dike

or causeway over or in any port, roadsted,

B-6

haven, harbor, canal, navigable river, or other

navigable water of the United States until the

consent of Congress to the building of such

structures shall have been obtained and until

the plans for the same shall have been submit-

ted to and approved by the Chief of Engineers

and by the Secretary of the Army.“

The Court finds that the the construction performed

by the defendant constituted a dam under Section 9

and is subject to the permit requirements of the

United States set forth at 33 C.F.R. 321.3.

Section 10 of the Rivers and Harbors Act, 33

U.S.C. 403 provides that:

“The creation of any obstruction not affirm-

atively authorized by Congress to the

navigable capacity of —0 of the waters of the

United States is prohibited.”

Additionally, Section 10 states that:

“It shall not be lawful to excavate or fill or in

any manner to alter or modify the course,

location, condition or capacity of any port,

roads haven, harbor, — lake, harbor

of refuge, or enclosure within the limits of

any breakwater, or of the channel of any

navigable water of the United States, unless

the work has been recommended by the Chief

of Engineers and authorized by the Secretary

of the Army prior to beginning the same.“

The Court finds that the construction created by the

defendant obstructed the canal and altered its condi-

B-7

tion and capacity under Section 10 of the Rivers and

Harbors Act and is subject to the permit re

quirements of the United States set forth in 33 C. F. R.

$22.3.

33 C.F.R. 322.4 creates a nationwide permit

which provides an exemption from individual Section

10 permit requirements for structures listed in Sec-

tions A—G. Section G of that rule provides an exemp-

tion for:

“Structures or work completed before the

18th of December, 1968 or in water bodies

over which the District E has not

asserted jurisdiction provided there is no in-

terference with navigation.“

Defendant contends that Section G is applicable in

this case. The Court considers this contention to be

without merit for the reason that the new dam was not

completed before December 18, 1968 and did indeed

interfere with navigation. The material placed in the

canal by the defendant initially blocked the canal and

after being cut by persons unknown continues to

reduce the width and depth of the canal at this point.

Since the required elements under Section G do not

exist, the section cannot provide any exemption of the

permit requirement.

Defendant also argues that Section C of 33

C. F. R. 322.4 is applicable. That section eliminates the

B-8

necessity of a permit in regard to:

J. the repair, rehabilitation, or

replacements of any previously authorized,

currently serviceable, structure or of ary cur-

rently serviceable structure constructed prior

to the requirement of authorization; provided

such repair, rehabilitation, or replacement

does not result in the deviation from the

plans of the original structure, and further,

A that the structure to be maintained

s not been put to used differing from uses

specified for it in any permit authorizing its

original construction.”

Mr. John and Mr. Ventola, both Government

witnesses, testified that the Army Corps of Engineers

interprets currently serviceable’ to mean that a

structure must be existing within a period of time of

its reconstruction. Not only is such an interpretation

by the Corp given great deference by a court (Udall v.

Talman, 85 Sup.Ct. 92, 1965), but that interpretation

is a reasonable one here.

The Court finds that the dam was not currently

serviceable when it was replaced. By 1965 or 1966,

the dam was completely removed from the canal. In

1965, defendant started negotiations with Mr.

Roussel about the access and these negotiations con-

tinued unsuccessfully until 1971. Not until 1974 did

the defendant file a lawsuit. In 1976, judgment was

rendered in state court granting defendant access. A

fifteen-month delay existed between the favorable ap-

B-9

pellate court decision on April 13th 1976 and the con-

struction in July of 1977. From the above recital of

facts, it is obvious that Mr. DeFelice waited too long

and for no justifiable reason in attempting to

reconstruct the dam. For six years the defendant

negotiated and then for the following three years the

defendant did nothing. The Court finds that the con-

struction of the dam in question cannot be seen as an

intent to recontruct a currently serviceable dem when

the dam had not been inexistence for nine years and

where no justifiable reason for the delay in repair ex-

isted.

Section 301 of the Federal Water Pollution Con-

trol Act, 33 U.S.C.1311 states that:

“Except as in compliance with this Section

and Sections 1312, 1316, 1317, 1328, 1342

and 1344 of this title, the discharge of any

pollutant by any person shall be unlawful.’

Sand is defined as a pollutant in 33 U.S.C. 136206) and

thus the placing of the sand in the canal as a dam

violated the Federal Water Pollution Control Act. The

discharge of such fill material into navigable waters is

subject to the permit requirements of Section 404 of

the Federal Water Pollution Control Act, 33 U.S.C.

1344. The exemptions for the permit requirements

under the Federal Water Pollution Control Act found

B-10

under 33 C.F.R. 309.120(d) (6) (ii), 33 C. F. R.

323.4—3(a) (5) and under the amendments to Section

404 of the Federal Water Pollution Control Act are

not applicable because all involve currently ser-

viceable structures which the Court has determined

do not exist under the facts involved.

Defendant’s argument that the federal court

must give full faith and credit“ to the judgment of

the state court and thus that the defendant is entitled

to reconstruct the dam in accordance with the Loui-

siana appellate decision is not in response to the

precise issue involved. Defendant’s right to construct

a crossing without a permit, not his right of access, is

the issue here. The state court judgment granting a

right of access does not conflict with the federal re-

quirement of a permit.

In addition to enjoining defendant from further

construction without obtaining Corps approval, the

plaintiff seeds restoration of the canal and the imposi-

tion of a civil penalty. Section 12 of the Rivers and

Harbors Act, 33 U.S.C. 406 and Section 319B of the

Federal Water Pollution Control Act Amendments of

1972,33 U.S.C. 1319(b) provide for restoration by

removal of the structures erected as a remedy for

the violation fo the respective Acts. The Court has

concluded that the material reduced the depth of the

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water in the canal impairing navigation and thus the

defendant is ordered to remove this material, at his ex-

pense, in an amount sufficient to restore the depth of

the water and the contour of the canal adjacent to the

dam site to its original condition.

Section 319D of the Federal Water

Pollution Control Act Amendments of 1972, 33 U.S.C.

1319(d) provides for a maximum penalty of $10,000.00

per day for each day of the violation to be imposed

within the discretion of the Court. See Weizman v.

Corps of Engineers, 526 F.2d 1302 (5th Cir., 1976);

United States v. Golden Acres, Inc., No. 76-0023, civil

4(E. D. N. C., 1977). The Court finds that here the im-

position of a fine would not be justifiable. The defend-

ant was attempting to place a dam across the canal

since the state court had determined that the defend-

ant had a right of access over the Roussel property.

Certainly, the defendant’s reason for building the dam

and his reliance on the state court judgment as

justification for such are relevant considerations in

assessing a fine. Further, the defendant was not

aware that the canal was subject to regulation by the

Corps nor that a permit was required to build the dam.

Though ignorance of the law is no defense, the imposi-

tion of a fine in addition to ordering restoration of the

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canal would be an undue burden and inequitable under

the circumstances.

For these reasons, defendant is ordered

to restore the canal to its original depth and contour

prior to commencement of defendant’s unauthorized

activity within ninety (90) days from the date of this

judgment and is enjoined from further construction of

a passageway across the canal without first obtaining

approval and authority from the Department of Army

Corps of Engineers.

New Orleans, Louisiana, this the 28 day

of February, 1980.

/S/ PATRICK E. CARR

UNITED STATES DISTRICT JUDGE

C-1

DeFELICE LAND CORPORATION

CITRUS LANDS OF LOUISIANA, INC.

No. 7377.

Court of Appeal of Louisiana,

Fourth Circuit

April 13, 1976.

Plaintiff, alleging that it had no means of ingress

or egress to its land, which was surrounded by defend-

ant’s land, brought suit for designation of servitude of

passage across defendant’s land, and alternatively,

for maintenance and recognition of conventional ser-

vitude across defendant’s property acquired by plain-

tiff's ancestor in title. The Twenty-Fifth Judicial

District Court, Parish of Plaquemines, No. 16-506,

Eugene E. Leon, Jr., J., decided case in favor of

defendant, and plaintiff appealed. The Court of Ap-

peal, Schott, J., held that where title did not designate

location of servitude, plaintiff was entitled to main-

tain servitude at location where servitude had been

previously exercised.

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Amended and remanded.

1. Easements 44(1)

Succession: Phrase ‘‘manner in which it is to be

used, in statute providing that if title by which

passage is granted does not designate manner in

which it is to be used, use which person to whom ser-

vitude is granted previously made of it will serve to in-

terpret title, has same meaning as it does in statute

providing that “if manner in which servitude is to be

used is uncertain, owner of estate which owes servi-

tude is bound to fix place where he wishes it to be ex-

ercised, i.e., place necessary for exercise of right of

passage; accordingly, where title does not designate

manner in which servitude it to be used, use previous-

ly made of it will serve to interpret title. LSA-C.C.

arts. 700, 777, 779, 780.

2. Easements 48(3)

Succession: Where title established plaintiff's

general right of ingress and egress equivalent to ser-

vitude of passage but failed to establish location of

servitude, plaintiff was entitled to have his servitude

at location of prior exercise of servitude. LSA-C.C.

arts. 700, 777, 779, 780.

‘

C-3

Lemle, Kelleher, Kohlmeyer & Matthews, Vance

E. Ellefson and William S. Penick, New Orleans, for

plaintiff-appellant.

Porteous, Toledano, Hainkel & Johnson, William

W. Miles, New Orleans, for defendant-appellee.

Before GULOTTA and SCHOTT, JJ., and P. C.

ST. AMANT, Assigned Judge.

SCHOTT, Judge.

Plaintiff, alleging that it had no means of ingress

or egress to its land, which was surrounded by defend-

ant’s land, brought this suit for designation of a ser-

vitude of passage across defendant’s land, pursuant

to LSA-C.C. Art 699 and alternatively, for mainten-

ance and recognition of t conventional servitude

across defendant’s property acquired by plaintiff's

ancestor in title. Defendant admitted that plaintiff

was entitled to a servitude of passage, and the only

issue became the proper location of the right-of-way.

The titles of both pieces of property were once

held by a common ancestor in title who included in the

act of sale to plaintiff's ancestor the following:

„. . , anything in this act of sale to the con-

trary notwithstanding the vendee, his heirs and

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assigns, shall have ingress and egress to the

herein conveyed property over and across the

full depth of the said conveyed property in front

of the forty arpent line.“

For many years this right of passage was exer-

cised by plaintiff and its ancestors in title over a shell

road running across a piece of defendant's property.

This road commenced at a bridge over a drainage

canal into plaintiff's property on the southwest and

Louisiana Highway 23 on the northeast end of this

road. At some point in time after defendant pur-

chased the property to the northeast of plaintiff's, a

gate was installed on the southwest side of the road,

preventing plaintiff from using it for access to and

egress from its property. This is the location which

plaintiff championed at the trial of the case for the ex-

ercise of the servitude.

Defendant championed another location some

distance southeast of the first location which would

connect plaintiff's property to Lake Hermitage Road

at a point some distance from its intersection with

Highway 23.

The evidence shows that the distance between

plaintiff’s land and Highway 23, at the original loca-

tion designated at point A, would be 580 feet, while

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the distance between plaintiff's land and the Lake

Hermitage Road, designed as point B, would be

529.84 feet. In either case plaintiff would be required

to construct a bridge across the canal dividing its

property from defendant’s. However, Highway 23 is

paved with black-top while Lake Hermitage Road is a

shell surfaced road. If the right-of-way were located

at point B its use would entail traveling along Lake

Heritage Road for about two miles before reaching

Highway 23. Thus, the evidence shows that the loca-

tion of the servitude at point B would be least in-

jurious to defendant, while location at point B would

not be equally convenient to plaintiff as would be loca-

tion at point A. There is a dispute as to whether the

Lake Hermitage Road is a public road or not, with the

trial judge finding that it was formerly a private road

but was now a public road, made public by use and

maintained by the Parish of Plaquemines. While there

is no evidence in the record to support this finding, for

our purposes here, we will assume that Lake Her-

mitage Road is a public road in the implementation of

the Civil Code articles governing the rights of the par-

ties.

The trial judge decided the case in favor of

defend-ant on the basis of LSA-C.C. Art. 700, which

provides as follows:

“The owner of the estate, which is surrounded

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by other lands, has no right to exact the right of

passage from which of his neighbors he

chooses.

“The passage shall be generally taken on the

side where the distance is the shortest from the

inclosed estate to the public road.

Nevertheless, it shall be fixed in the place the

least injurious to the person on whose estate

the passage is granted.

Plaintiff contends that C. C. Art. 777 governs the

situation:

“The owner of the estate which owes the ser-

vitude can do nothing tending to diminish its

use, or to make it more inconvenient.

“Thus he can not change the condition of the

premises, nor transfer the exercise of the ser-

vitude to a place different from that on which it

was assigned in the first instance.

“Yet if this primative assignment has become

more burdensome to the owner of the estate

which owes the servitude, or if he is thereby

prevented from making advantageous repairs

C-7

on his estate, he may offer the owner of the

other estate a place equally convenient for the

exercise of his rights, and the owner of the

estate to which the servitude is due can not

refuse it.

The nub of the controversy is whether the ser-

vitude was already established at point A, in which

case plaintiff is entitled to maintenance and recogni-

tion of the servitude at that point since point B is not

a place equally convenient“ as required by Art. 777,

or the location has not been established so that defen-

dant is entitled to fix the servitude at point B, which

from its point of view is the place least injurious”’ as

provided by Art. 700.

The servitude of passage being a discontinuous

servitude, Art. 727, can be established only by title

and cannot be acquired by possession itself. Art. 766.

The problem here is that plaintiff's general right

of ingress and egress equivalent to a servitude of

passage was established by title but the location was

not. Plaintiff relies upon the following articles of the

Civil Code to support its position that it did acquire

the servitude at point A:

C-8

“Art 779. If the manner in which the servitude

is to be used is uncertain, as if the place

necessary for the exercise of the right of

passage is not designated in the title, the owner

of the estate which owes the servitude is bound

to fix the place where he wishes it to be exer-

cised. (emphasis supplied)

“Art 780. If the title by which a passage is

granted does not designate its breadth, nor the

manner in which it is to be used, whether on

foot, or horseback, or with carriages, the use

which the person to whom the servitude is

granted previously made of it will serve to in-

terpret the title.

‘If there was no such use made of it before, the

probable intention of the parties must be con-

sidered, and the purpose for which the passage

is granted.

“If these circumstances can afford no light, it

must be decided in favor of the land which owes

the servitude, and a foot passage must be con-

ceded eight feet wide, where it is straight, and

ten feet wide where it turns.“ (emphasis sup-

plied)

C-9

[1] As can be seen, where the title does not

designate ‘‘the manner in which [the servitude] is to be

used the use previously made of it will serve to inter-

pret the title. The words manner in which it is to be

used” in Art. 780 must include the meaning which is

given to the same words in Art. 779, i.e., the place

necessary for the exercise of the right of passage.”

We find nothing to suggest that these words do not

have the same meaning in both articles. Furthermore,

the jurisprudence indicates that the place for the exer-

cise of the servitude is to be determined by the use

previously made of it.

In Burga v. Stoutz, 174 La. 586, 141 So. 67, plain-

tiff was awarded an injunction against defendant

from closing off a right of passage from plaintiff's

property across defendant’s where plaintiff's title in-

cluded ‘‘the privilege of using the paved driveway in

the rear of the property hereinabove described, which

paved driveway is part of Lot ‘B’ belonging to the ven-

dors. . ."’ Defendant attacked the title on the ground

that it was insufficient in that it did not state the

length or the width of same. The Court said:

“This particular ground of attack is without

merit, since the paved runways are located as

physical objects on the surface of lot‘B’, the

property of defendnat, as shown by

C-10

photographs filed in evidence, and the length

and width of same are easily ascertainable.

That which can be made certain is considered in

law a certain.”

In J.C. Trahan, Drilling Contractor, Inc. v.

Younger, 169 So.2d 15 (La. App. 2nd Cir. 1964) plain-

tiff’s right-of-way grants were attacked on the

grounds that they did not sufficiently describe the ser-

vitude as to its width, length and points of traverse.

The instruments conferred upon the grantee the

right-of-way to lay, maintain and operate a pipeline

over, under, across and through the following describ-

ed property. . There followed a description of the

property to be burdened with the servitude. Pror to

the institution of the suit plaintiff had constructed

and operated the subject pipeline through the proper-

ty. The court applied the reasoning of Burgas v.

Stoutz recognizing the distinction in that case stem-

ming from the fact that there was a descriptive platt

annexed to the deed granting the right-of-way, but

held:

„ . Regardless of the failure to describe the

exact location of the servitude at the time of the

grants this failure was remedied by the con-

struction of the pipeline. It follows that that

which was uncertain has been made certain.

C-11

[2] We conclude that plaintiff is entitled to have

his servitude at point A recognized and maintained.

Accordingly, the judgment appealed from is

amended to delete the description of the right-of-way

at point B and to substitute therefor a description at

point A. Because the judgment of the trial court in-

corporated a legal description based upon an engineer-

ing survey dated April 9, 1975, which described in

detail the dimensions and location of the right-of-way

at point B, and since no comparable description and

survey are available to us for a description of the ser-

vitude at point A, the case must be remanded to

District Court in order to incorporate into a final judg-

ment a proper description of the right-of-way at point

A. In all other respects the judgment of the trial court

is affirmed. Defendant is to pay the costs of this ap-

peal.

AMENDED AND REMANDED.

LUGENBUHL, LARZELERE & ELLEFSON

Of Counsel

VANCE E. ELLEFSON

600 Carondelet Street

Suite 602, Central Plaza

New Orleans, La. 70130

Telephone: (504)

523-

Attorney for Savare

DeFelice

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.