Petition — Buttrey v. United States
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82-1303
NO. aca eneiliaaeill
IN THE FEB
Supreme Court of the si Sie” |
OCTOBER TERM, 1982
(Case No. 1)
JOHN BUTTREY and JOHN BUTTREY DEVELOPMENTS, INC.
Petitioners
versus
UNITED STATES OF AMERICA, ET AL.,
Respondents
and
(Case No. 2)
JOHN BUTTREY and JOHN BUTTREY DEVELOPMENTS, INC.
Petitioners
versus
UNITED STATES OF AMERICA, ET AL.,
Respondents
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE FIFTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
CHARLES K. REASONOVER
HOWARD J. ETTINGER
DEUTSCH, KERRIGAN & STILES
4700 One Shell Square
New Orleans, La. 70139
Telephone: 504/581-5141
Attorneys for Petitioners,
John Buttrey and John
Buttrey Developments, Inc.
QUESTIONS PRESENTED
CAN THE UNITED STATES ARMY CORPS OF EN.-
GINEERS PROPERLY ASSERT JURISDICTION OVER
CIVILIAN ACTIVITIES ON PRIVATE PROPERTY UNDER
SECTION 404 OF THE FEDERAL WATER POLLUTION
CONTROL ACT?
1. Is Congress’ delegation of permit powers to the
Army Corps of Engineers under Section 404 of the Federal
Water Pollution Control Act, 33 U.S.C. Section 1344, pro-
hibited by Article I, Section 8, clauses 11 through 14 of the
United States Constitution, to the extent that Section 404
vests civil law enforcement authority in the military?
IS THE UNITED STATES ARMY CORPS OF ENGINEERS
REQUIRED TO PROVIDE AN ADVERSARY HEARING
UNDER SECTION 404 OF THE FEDERAL WATER POL-
LUTION CONTROL ACT?
2. Does Section 404 of the Federal Water Pollution
Control Act, 33 U.S.C. §1344, require the United States
Army Corps of Engineers to conduct an adversary hearing
with the opportunity to cross-examine witnesses in accor-
dance with the provisions of the Administrative Procedure
Act, 5 U.S.C. §551 ef seq, when the Army Corps asserts
jurisdiction under the Act and prohibits projects on private-
ly owned property? Three other Circuits have held that
identical language in another section of the same Act (Sec-
tion 402 of the Federal Water Pollution Control Act, 33
U.S.C. § 1342) requires such a hearing.
3. Does the Due Process Clause of the United States
Constitution mandate that an adversary hearing be granted
to an applicant when the United States Army Corps of
Engineers asserts jurisdiction under Section 404 of the
Federal Water Pollution Control Act, 33 U.S.C. §1344,
and refuses to issue a permit authorizing private work on
privately owned property?
PARTIES TO THE PROCEEDINGS
The two petitioners in this writ application were the
only appellants in the Circuit Court and the only plaintiffs
in the District Court. In addition to the United States of
America, the appellees and original defendants below consist-
ed of Clifford L. Alexander, Jr., Secretary of the Army,
Major General Joseph K. Bratton, Chief of Engineers, and
Colonel Robert H. Ryan, District Engineer, U. S. Army
Corps of Engineers, Mobile District. There were no other
parties to this litigation.
TABLE OF CONTENTS
Page
I acc kc nea deceseccesssvavvewnne i
PS OT PONE 6. 6.0 0.6 ctv reas eens onsseccees iii
PE IR co cc cncvavecnveeencsnteecbennn vi
COR DAO oc ccc ccc te cterececcccssscecsesses l
SE esc ae as kha e Gas ea kd cibale eke eee tae eas 2
Statutory Provisions Involved ...........0 cece eee eens 2
I on bie h sd vanianeeen ep eeaeee 3
es Ba GI OD FANE ni ccc tcc csencavevenes 7
I. Can the United States Army Corps of Engineers
Properly Assert Jurisdiction over Civilian Activi-
ties on Private Property under Section 404 of
the Federal Water Pollution Control Act? .......... 8
II. Is the United States Army Corps of Engineers
Required to Provide an Adversary Hearing under
Section 404 of the Federal Water Pollution
DTMEE ccutapieueaca ensues ees bedeeee' 15
A. Application of the Administration Proce-
re yr errr ere ee eee ee 16
TABLE OF CONTENTS (Continued)
Page
B. Adversary Hearing Required Under the Due
EE S645 oP a dace sGs saben eeceees 19
EE OP ere es ene eee eee eee 28
PEGS e eb DUCKS tees eN ee eeseoceescserecess A-l
TABLE OF AUTHORITIES
Page
CASES:
Armstrong v. Manzo, 380 US 545, 85 S. Ct. 1187
ee ee aa es cae ae 6 a6 ib kO0 4% 08 19
Costle v. Pacific Legal Foundation, 445 US 198, 100
no theca see Ghev esses eeeseee de 24
ee Fare BE, TE Ue ZUIDOO) ccc ccc ccccccvccecs 13
Greene v. McElroy, 360 US 474, 79 S.Ct. 1400
EEE paps, SUP ES ee 19, 20
Kinsella v. United States ex rel. Singleton, 361 US
SE Es MP ERUED convSdcdecvcsccvcdcoscerece 13
Laird v. Tatum, 408 US 1, 92 S. Ct. 2318 (1972) .10, 11, 12
McElroy v. United States ex rel. Guagliardo, 361 US
re 13
Marathon Oil Company vy, Environmental Protection
Agency, 564 F.2d 1253 (9th Cir. 1977) .......... 17,19
Mathews v. Eldridge, 424 US 319, 96 S. Ct. 893
ee aes ooh ass 6-40 ba 20, 22, 23, 24, 25, 27
Morgan v. United States, 304 US 1, 58 S. Ct. 773
AE RES Pas ae Pe ee are 23, 24
TABLE OF AUTHORITIES (Continued)
O'Callahan v. Parker, 395 US 258, 89 S. Ct. 1683
(PPV OrCrr Err rererrrreeire err errr eee 13
Reid v. Covert, 354 US 1, 77S. Ct. 1222 (1957) ..... 12, 13
Seacoast Anti-Pollution League v. Costle, 572 F.2d
ES SEE oc ci bi sited chan eweee seen 17, 19
United States ex rel. Toth v. Quarles, 350 US 11, 76
I ics cs gash a heeds eee On ae Ke 13
United States v. Walden, 490 F.2d 372 (4th Cir.
RATS ae et 14 A ce a Bs 8 13
United States Steel Corporation v. Train, 556 F.2d
ren. ss 5 sine e ae ecareawesbaees 17,19
STATUTES:
Administrative Procedure Act, 5 U.S.C. Article 551
Se ae ee i, 8, 11, 16, 17, 18, 19, 21, 28
Judiciary Act, 28 U.S.C. Article 1254(1) ............... 2
Rivers and Harbors Act of 1899, Section 10, 33
a o's sce Danweeeh eu eewe ie 66 .15, 18
Federal Water Pollution Control Act, Section 402,
33 U.S.C. Article 1342 .......... i, 1, 16, 17, 18, 19, 26
TABLE OF AUTHORITIES (Continued)
Page
Federal Water Pollution Control Act, Section 404,
33 U.S.C. Article 1344 .....i, ii, 3, 7, 8,9, 13, 14, 15, 16,
17, 18, 19, 24, 25, 27, 28
U, &. Const... ast. E SOB Ge .cvccsvavaves 7, 13,14, 15
U.S. Const., art. 1, Sec. 8, cls. 11-14... .i, 2, 7,9, 10, 12, 13,
14, 15
a, ie ee. GE, F vk nc aks cdkcceanans i, 8, 16, 19, 28
MISCELLANEOUS:
7s, Boe. BSR CORPS 4 kacbinckcaantoveeseearwen 10
2 K. C. Davis, Administrative Law Treatise, Section
SF ck a Sci k ae bts eseeecehanneee eee tae 26
NO.
IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1982
JOHN BUTTREY and JOHN BUTTREY
DEVELOPMENTS, INC.,
Petitioners
versus
UNITED STATES OF AMERICA, ET AL.,
Respondents
PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Petitioners, John Buttrey and John Buttrey Develop-
ments, Inc., respectfully pray that writs of certiorari issue
to review the two judgments of the Court of Appeals for
the Fifth Circuit entered on November 8, 1982.
OPINIONS BELOW
The two opinions of the Court of Appeals for the Fifth
Circuit, John Buttrey and John Buttrey Developments,
Inc. versus United States of America, et al., C.A. 81-3234,
slip opinion p. 534, (Sth Cir. 11/8/82), and John Buttrey
and John Buttrey Developments, Inc. versus United States
of America, et al, C.A. 81-3649, slip opinion, p. 552 (Sth
Cir. 11/8/82), appear as appendices A and B, respectively,
in the attached appendix. A copy of the district court’s
opinion in the first case appears as appendice C. No written
opinion was filed in the second case by the district court
but judgment was rendered orally from the bench. A trans-
cript of this ruling appears as appendice D. The district
court’s rulings are unreported. These two cases were con-
solidated for oral argument by the Fifth Circuit and the
opinions, although separate, were rendered on the same
day. Both opinions involve the same parties and relate to
the Corps of Engineers’ exercise of permitting power under
the same statute.
JURISDICTION
The Court of Appeals entered judgment in these matters
on November 8, 1982. The jurisdiction of this Court is
invoked under 28 U.S.C. Section 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
1) Article I Section 8, clauses 11 through 14 of the
United States Constitution provide:
“The Congress shall have Power. . .
To Declare War, Grant Letters of Marque and Reprisal,
and make Rules concerning Captures on Land and Water;
To Raise and Support Armies, but no Appropriation of
Money to that Use shall be for longer Term than Two
Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation
of the Land and Naval Forces”.
2) Section 404(a) of the Federal Water Pollution Con-
trol Act, 33 U.S.C. Section 1344(a):
The Secretary may issue permits, after
notice and opportunity for public hearing
for the discharge of dredged or fill material
into the navigable waters at specified disposal
sites. Not later than the fifteenth day after
the date an applicant submits all the infor-
mation required to complete an application
for a permit under this subsection, the Secre-
tary shall publish the notice required by this
subsection.”
The full text of this statute is set forth in the attached
appendix as appendice E.
STATEMENT OF THE CASE
This Petition for Certiorari applies to two separate suits,
involving two distinct issues; but both of the suits con-
cern the same parties and statute and relate to Petitioners’
attempt to improve an already-existing residential subdivision
in south Louisiana. Certain portions of the subdivision were
found to be “wetlands” by the United States Army Corps
of Engineer (“‘Corps’’), and it is the Corps’ zefusal to allow
further development which led to this litigation.
In an effort to alleviate the threat of flooding to the
subdivision (a problem which effects almost all of south
Louisiana), to enhance the attractiveness of the area, and to
provide additional facilities to the subdivision, Petitioners
sought to undertake three separate projects on their private
property. In all three instances, the Corps either denied
permits or sought to enjoin these projects.
The project involved in the first suit (hereinafter “Buttrey
1") involved the excavation of a small lake, with the fill
to be used for construction of a levee for flood protection.
The second suit (“ButtreylI") arose after the Corps issued
two cease and desist orders in 1980; one relating to a sew-
age treatment plant which was built in 1976 and had been
in operation since that time, and another enjoining excava-
tion of a small pond.
In Buttrey I, Petitioners filed an application with the
Corps for a permit to undertake the contemplated dredge
work described above. In response thereto, the Corps issued
a public notice of the permit application. After the comment
period had been concluded, Petitioners were mailed copies
of the comments. Petitioners responded to these public
comments with data it had compiled and arguments in
support of the issuance of the permit and objected to the
Corps’ assertion of jurisdiction over this project.
Petitioners further requested that the Corps notify them
of any :pecific objections involved, an opportunity to file
responses to these objections, an opportunity to meet with
the Corps to discuss any of these objections, and, if any of
the objections were sufficient to preclude the issuance of
the permit, an adversary hearing with the right to cross-
examine witnesses. The Corps refused to grant the adversary
hearing as requested, stating that such a hearing was not
required, 1/
Shortly thereafter, the Corps denied Petitioners’ appli-
cation for a permit on the alleged grounds that there would
be a significant impact on the environment and that the
project would not be “in the public interest.’’ Petitioners
then filed Buttrey I seeking judicial review of the Corps’
finding of jurisdiction and of the denial of the permit.
Buttrey I specifically challenged the Corps’ refusal to grant
any hearing whatsoever with respect to both its jurisdictional
findings and its factual finding relating to the denial of the
permit.
Petitioners were allowed to take only two depositions,
both of which the district court limited to jurisdictional
questions only, in opposition to the Corps’ motion for
summary judgment. The district court subsequently conclud-
ed that a hearing before either the Corps or the Court was
unnecessary and granted the Corps’ motion for summary
judgment, upholding the Corps’ actions in all respects. The
Court of Appeals affirmed the district court’s decision.
The Fifth Circuit found that Petitioners had been afforded
a “paper hearing”, p. 544, and that an adversary hearing was
not required. This conclusion was reached, even after the
Court noted that “[t]hree other circuits have construed
virtually identical language in section 402 [of the same Act]
to require a trial-type hearing’’. p. 538.
1/ The Corps met informally with Petitioners on one occasion.
However, nothing was accomplished at this meeting, since the Corps
was unable to identify any objections to the project. There is no
record of what transpired at this meeting and there is no discussion
of the substance of this meeting anywhere in the administrative
record,
Buttrey II, which arose shortly after Buttrey I was filed
in the District Court, challenges the Corps’ jurisdiction,
as a branch of the military, to enforce civil laws against
civilians with respect to private activities on private proper-
ty. This challenge to the Corps’ jurisdiction arose as a result
of the Corps’ issuance of two cease and desist orders. 2/
After the Corps issued these two cease and desist orders,
Petitioners filed Buttrey Il, a multi-count complaint, where-
in Petitioners contested the Corps’ jurisdiction over these
two projects and, in a more basicargument, contested the
Corps’ civil law enforcement jurisdiction over United States
citizens on private property. Only this last argument is
presently before this Court.
2/ ‘The first cease and desist order concerned a sewerage treatment
plant which was constructed in 1976. This order was issued only
three days after Buttrey I had been filed. No discussions had taken
place between the Corps and Petitioners concerning this treatment
plant, and the Corps had not previously indicated that it had any
problems with this plant prior to the filing of Buttrey I and the Corps’
subsequent issuance of the cease and desist order.
The second cease and desist order was aimed at a small pond which
Petitioners advised the Corps they were going to dig. After giving the
details concerning this project, and discussing this
project with the Corps, Petitioners wrote the Corps on October 1,
1980, advising that they would begin work on the pond on October
15, 1980, and stating that it was their understanding that no permits
would be required, Colonel Ryan, the Corps’ Mobile District Engineer,
replied by letter dated October 22, 1980, that Section 404 of the
Federal Water Pollution Control Act (FWPCA) did not apply to excava-
tions, and that a “Department of Army permit would not be required”
if all the excavated materials were removed from the site. Petitioners
then began digging the pond in accordance with the Corps’ letter.
Nonetheless, on November 21, 1980, the Corps issued a cease and
desist order enjoining all work at the pond.
The district court again granted the Corps’ motion for
summary judgment, and the decision was affirmed on appeal.
The Fifth Circuit held that Congress could vest the United
States Army Corps of Engineers with permitting powers
under the FWPCA pursuant to the Commerce Clause, p. 555,
and noted that the Corps is a “civil arm of a military agen-
cy.”’ p. 557. (Two other counts of the Complaint in Buttrey
II, relating to the propriety of issuing the cease and desist
orders, are still before the district cous ‘.)
REASONS FOR GRANTING THE WRIT
There are three basic issues raised in these two cases
which were consolidated for argument in the Court of
Appeals. Buttrey II presents a fundamental challenge to the
Army Corps of Engineers’ jurisdiction under the FWPCA.
This argument is based on the premise that Congress’ dele-
gation of permitting powers to the Army Corps of Engineers
under FWPCA is violative of Article I, Section 8, clauses 11
through 14 of the United States Constitution, which embody
our Founding Fathers’ fear of military control over civilians.
These provisions prohibit Congress from passing any legis-
lation which provides for military civil law enforcement.
The Fifth Circuit erred in upholding the Corps’ civil law
enforcement jurisdiction on the basis of the Commerce
Clause. The “war power” provisions bar Congress from
passing any legislation which places authority over civilians
in the hands of the military, regardless of the underlying
authority of the law. The power of the military to enforce
civil laws with respect to the private activities of American
citizens in their own back yards is repugnant to the most
fundamental concepts on which our Constitution is based.
If it is found that the Army can properly assert civil
law enforcement jurisdiction over civilian activities on
private property, Buttrey I then challenges the procedures
and safeguards used by the Corps in determining its own
jurisdiction and denying permits for private projects on
privately owned property. Under current procedures, a
permit applicant is entitled to a “paper hearing’ in which
the applicant is permitted only to reply to public comments
received in response to a public notice. There is no require-
ment that an adversary hearing be held before the Corps
asserts its jurisdiction under the FWPCA and denies permits.
An applicant is not given a meaningful opportunity to
participate in the Corps’ decision-making process, and is
not entitled to confront or cross-examine witnesses, all
of which result in an abdication of meaningful judicial
review, in violation of the Administrative Procedure Act
and the Due Process Clause of the United States Constitu-
tion.
I. CAN THE UNITED STATES ARMY CORPS OF
ENGINEERS PROPERLY ASSERT JURISDICTION
OVER CIVILIAN ACTIVITIES ON PRIVATE PROP.
ERTY UNDER SECTION 404 OF THE FWPCA?
Is Congress’ delegation of permit powers
to the Army Corps of Engineers under Sec-
tion 404 of the Federal Water Pollution
Control Act prohibited by the United States
Constitution, to the extent that Section 404
vests civil law enforcement authority in the
military?
There are four very basic, uncontested facts which un-
derlie this argument: 1 - the Corps is a division of the
United States Army; 3/2 - under the FWPCA, the Corps
has authority to regulate all forms of activities in what it
deems to be “wetlands”, both public and private property,
in areas far removed from any seacoast or navigable river;
3 - this authority entitles the Corps to regulate and assert
control over United States citizens and to seek civil and
criminal penalties for violations of the Act; and 4 - the
FWPCA is purely an environmental statute which has no
military or defense purposes.
The history surrounding the formation of the Constitu-
tion is replete with the efforts of our Founding Fathers
to limit the control and sphere of the military and to sub-
ordinate it to civilian authority. They were determined to
put checks on the power of the military and to prevent the
military from asseiting law enforcement powers over civi-
lians. As stated by Representative Kimmel of Maryland
during the debates which proceeded the enactment of the
Possee Comitatus Act:
“Throughout the entire discussion of the
standing army, it is clear that the American
spirit would not tolerate the possibility of
employing that army for the execution of
the laws. The opinion of the times was dis-
tinctly and unanimously against it. This
opinion is embodied in the Constitution.
It is evident in the groupings of the powers
conferred on Congress. The war power is
given in Article 1, section 8, in clauses num-
bered 11, 12, 13 and 14.
3/ In fact, the authority to issue permits under the FWPCA is
given to the Secretary of the Army, who acts through the Corps.
13 U.S.C, §1344(d).
This is too plain for argument. In these four
clauses is conferred the power to declare war
and the power to obtain the means for carry-
ing on the war. And then another power is
given, separate and distinct from the war
power. The power to execute the laws,
suppress insurrections, and repel invasions
is given in clauses 15 and 16.
In these two clauses is conferred the power to
execute the laws of the Union, suppress
insurrections, and repel invasions, and the
means for exercising this power. These two
powers are as distinct as are the means to
be employed for the exercise of them, the
Army for defense against external foes,
the militia for the suppression of internal
resistance, the Army to be created by Con-
gress, because war is a subject of national
jurisdiction only; the militia to be created
jointly by Congress and the States, because
the execution of the laws of the Union and
the suppression of insurrections may involve
question of disputed jurisdiction. By these
provisions the people were to be protected
by interference by such army as Congress
might maintain.” 7 Cong. Rec. 3581 (1878).
The opinions which have interpreted Article I, Section
8, clauses 11-14 have clearly held that the military is not
to have any law enforcement authority over American
citizens. For example, in Laird vs Tatum, 408 U.S. 1, 92
10
S.Ct. 2318 (1972), this Court was faced with a complaint
against army surveillance of civilians during the late 1960's.
The army was keeping informational files on people observ-
ed at “protest rallies”. This suit was dismissed for lack of
standing, but language from Chief Justice Burger’s majority
opinion and Justice Douglas’ dissent are particularly on
point. At the end of the majority opinion, this Court stated:
“The concerns of the Executive and Legis-
lative Branches in response to disclosure of
the Army surveillance activities - and indeed
the claims alleged in the complaint - reflect
a traditional and strong resistance of Ameri-
cans to any military intrusion into civilian
affairs. That tradition has deep roots in our
history and found early expression, for ex-
ample, in the Third Amendment’s explicit
prohibition against quartering soldiers in
private homes without consent and in the
constitutional provisions for civilian con-
trol of the military. Those prohibitions are
not directly presented by this case, but their
philosophical underpinnings explain our tradi-
tional insistence on limitations on military
operations in peacetime. Indeed, when
presented with claims of judicially recog-
nizable injuries resulting from military intru-
sion into the civilian sector, the federal courts
are fully empowered to consider claims of
those asserting such injury; there is nothing
in our nation’s history or in this Court's
decided cases, including our holding to-
day, that can properly be seen as giving any
indication that actual or threatened injury
by reason of unlawful activities of the mili-
tary would go unnoticed or unremedied.”
11
408 U.S, at 15-16.
Justice Douglas was appalled at the idea that the mil-
itary had become active in matters involving American
citizens:
“The upshot is that the Armed Services - as
distinguished from the ‘militia’ - are not
regulatory agencies or bureaus that may be
created as Congress desires and granted such
powers as are seen necessary and proper. The
authority to provide rules ‘governing’ the
Armed Services means the grant of authority
to the Armed Services to govern themselves,
not the authority to govern civilians’. 408
US. at 18-19
and
“The action in turning the ‘armies’ loose on
surveillance of civilians was a gross repudia-
tion of our traditions. The military, though
important to us, is subservient and restricted
purely to military missions. It even took an
Act of Congress to allow a member of the
Joint Chiefs of Staff to address the Congress;
and that small step did not go unnoticed, but
was in fact viewed with alarm by those re-
spectful of the civilian tradition”. 408 U.S. at
23
This Court has had an opportunity to deal with Article
I, Section 8, clauses 11 through 14 on several occasions.
In most of these cases, the issues dealt with the military’s
right to court-martial non-military personnel. In all of these
cases, it was specifically held that the military has no juris-
diction over civilians. Such cases include Reid vs Covert,
12
354 U.S. 1, 77 S.Ct. 1222 (1957), O'Callahan vs Parker,
395 U.S. 258, 89 S.Ct. 1683 (1969), McElroy vs United
States ex rel. Guagliardo, 361 U.S. 281, 80 S.Ct. 305 (1960),
Kinsella vs United States ex rel. Singleton, 361 U.S. 234,
80 S.Ct. 297 (1960), United States ex rel. Toth vs Quarles,
350 U.S. 11, 76 S.Ct. 1 (1955), and Ex Parte Milligan, 71
U.S. 2 (1866).
In United States vs Walden, 490 F.2d 372 (4th Cir. 1974),
the court had before it a motion to suppress evidence ob-
tained by marines in an undercover capacity. In granting
this motion, the court relied on Navy Instruction 5400.12
which barred the use of naval personnel for the enforce-
ment of criminal or civil statutes. Although it was not nece -
sary for the court to pass on the constitutional question, the
court noted the long standing antipathy of Americans to t)..
involvement of the military in civil law enforcement and thir
fear of a standing army.
In Buttrey II, the Court of Appeals ignored the abso-
lute constitutional prohibition against military law enforce-
ment jurisdiction over civilians, and erred in allowing this
to occur under the FWPCA on the basis that this statute
has its origin in the Commerce Clause. In upholding the
Corps’ rigitt to assert authority over civilians under the
FWPCA, the Fifth Circuit found that the Corps’ powers
under the FWPCA derive from the Commerce Clause, and
not the “war power” provisions of the Constitution. For
this reason, the lower court felt that delegation of powers
to the Corps was proper despite the clear prohibitions in
Article I, Section 8, clauses 11-14.
The Fifth Circuit’s decision in Buttrey II would, if upheld,
totally emasculate the Constitution’s restrictions on congres-
sional power to enact legislation which provides for mil-
13
itary authority over civilians. If Congress can legislate with
regard to the military to the full extent of its powers under
the Commerce Clause, the “war power” provisions of the
Constitution would have no application nor meaning. The
military would be able to assert authority over citizens to
the full extent that Congress itself can assert such authority.
If the decision is upheld, military jurisdiction could be
asserted in such areas as social security, labor-managment
relationships, banking, transportation, etc., as well as all
other phases of environmental regulation, all under the
authority of the Commerce Clause.
The Court of Appeals could not cite a single case in
support of its decision in Buttrey Il. Without any law to
support its decision, the Court then erred in attempting
to distinguish the cases cited by Petitioners. The Court noted
that in the military court-martial cases cited above, the
imposition of court-martial jurisdiction over civilians ‘1vaded
the jurisdiction of the civil courts and deprived these persons
of their right to a trial by jury. While that may be true, it
was not the basis for this Court’s holdings in those cases.
Article 1, Section 8, clauses 11 through 14 do not limit the
use of the military in civilian affairs only when other pro-
visions of the Constitution are at issue; this is a blanket
prohibition without limitation.
The Court of Appeals also noted the “unique nature of
the Corps” and its performance of civil functions over the
past 150 years. However, Petitioners submit that there is
no such thing as a “civil arm of a military agency”, p. 557,
and point out that the Corps’ assumption of powers under
the FWPCA is of recent origin. 4/Prior to 1972, Corps
The Fifth Circuit’s reliance on the existence of a civilian official
within the Army Corps of Engineers is the only basis for the court's
finding that this particular branch of the Army has a “civil arm”,
14
authority was gencrally limited to navigable bodies of water
as traditionally defined under Section 10 of the Rivers and
Harbors Act, 33 U.S.C. §403, over which the federal govern-
ment has always had a legitimate military interest, but which
does not entitle the Corps to assert authority over the private
activities in back yards of private citizens.
Although Congress clearly has authority to vest any
non-military agency with jurisdiction under Section 404 of
the FWPCA, Article I, Section 8, clauses 11 through 14
prohibit the Armed Forces from enforcing Section 404 with
respect to civilian activities on private property. The extent
of Congress’ powers to legislate under the Commerce Clause
in no way effects or alters this clear prohibition on the use
of military power over civilians. The Court of Appeals’
holding effectively writes these prohibitions out of the
Constitution.
IL JIS THE UNITED STATES ARMY CORPS OF ENGI-
NEERS REQUIRED TO PROVIDE AN ADVERSARY
HEARING UNDER SECTION 404 OF THE FEDERAL
WATER POLLUTION CONTROL ACT
In deciding that jurisdiction under the FWPCA existed
and that Petitioners’ project in Buttrey I was not in the
public interest, the Corps only allowed Petitioners to respond
to comments gathered in response to a public notice,
Considering the substantial adverse impact that denial
4) Continued
This is tantamount to concluding that all of the military is really
civil in nature because of the presence of a civilian as Secretary of
Defense, or the President as Commander-in-Chief, Such a conclusion
also ignores the fact that the delegation of authority actually involved
is to the District Engineer, an Army Colonel, who makes and signs all
15
of this permit will have on Petitioners, and considering the
effect the granting or denial of Corps permits under the
FWPCA can have on other applicants, Petitioners submit
that the Corps’ “paper hearing” procedures are wholly in-
adequate to protect Petitioners and other applicants from
erroneous and arbitrary decisions, in violation of the Due
Process Clause of the United States Constitution and, further-
more, fail to comply with the statutory scheme envisioned
by the Act.
A. Application of the Administrative Procedure Act
Does Section 404 of the Federal Water
Pollution Control Act require that the United
States Army Corps of Engineers conduct an
adversary hearing with the opportunity to
cross-examine witnesses in accordance with
the provisions of the Administrative Pro-
cedure Act, when the U. S. Army Corps of
Engineers asserts jurisdiction under the Act
and prohibits projects on privately owned
property? Three other Circuits have held
that similar language in Section 402 of the
Federal Water Pollution Control Act, 33
U.S.C, §1342, requires such a_ hearing.
Section 404, 33 USC §1344, which gives the Secretary
of the Army permit powers over “wetlands” under the
FWPCA, reads, in part:
“The Secretary may issue permits, after no-
tice and opportunity for public hearing for
the discharge of dredged or fill material into
the navigable waters at specified disposal
sites.” (Emphasis added.)
16
Section 402 of the FWPCA, 33 §1342, which gives the
Administrator of the Environmental Protection Agency
permit powers over the discharge of pollutants into navi-
gable waters, reads, in part:
“Except as provided in Sections 1328 and
1344 of this title, the Administrator may,
after opportunity for public hearing, issue
a permit for the discharge of any pollutant,
or combination of pollutants, notwithstand-
ing Section 1311(a) of this title. . .”
(Emphasis added.)
In three prior cases, three different Circuit Courts have
interpreted the “after opportunity for public hearing”
language in Section 402 as requiring an adversary hearing
with the right of cross-examination, Seacoast Anti-Pollution
League vs Costle, §72 F.2d 872 (Ist Cir. 1978), Marathon
Oil Company vs Environmental Protection Agency, 564
F.2d 1253 (9th Cir. 1977), United States Steel Corporation
vs, Train, 556 F.2d 822 (7th Cir, 1977). In these opinions,
the courts ruled that the Administrative Procedure Act,
5 U.S.C. §551, ef seq, was applicable. Nonetheless, the
Fifth Circuit herein held that the identical language in
Section 404 does not require an adversary hearing.
After determining that the granting or denial of a permit
under Section 402 was an adjudication, the court in Sea-
coast Anti-Pollution League vs Costle, quoting in part from
Marathon Oil, Co., stated:
“ ‘As the instant proceeding well demon-
strates, the factual questions involved in
the issuance of Section 402 permits will
frequently be sharply disputed. Adversarial
17
hearings will be helpful, therefore, in guaran-
teeing both reasoned decisionmaking and
meaningful judicial review.’ " p. 876.
and
“This is exactly the kind of quasi-judicial
proceeding for which the adjudicatory proce-
dures of the APA were intended.” p, 876.
The Fifth Circuit in Buttrey I conceded that the language
in Section 402 and Section 404 is very similar and that both
sections are part of the same scheme, but found that the
three above-cited decisions are inapposite, simply on the basis
that the Corps regulates permits under Section 404 while the
EPA administers Section 402 permits. This decision was
reached upon a purported finding of congressional approval
of the Corps’ paper hearing procedures under the Rivers and
Harbors Act, 33 USC §403.
Other than the agencies which are authorized to issue
these permits, and the difference between the types of
discharges involved, there is nothing to distinguish Section
402 and 404. The same individualized factual determinations
must be made in deciding whether or not to issue a permit
under either one of these sections. An adjudicatory hearing
under Section 404 is just as necessary as one under 402, as
the decision whether or not to issue a permit is heavily fact
oriented and dependent of the particular situation in each
case. This was patently recognized in the Section 402 cases
where the courts found the processing of permits to be an
adjudication under the Administrative Procedure Act. A
permit application under Section 404 is likewise an adjudica-
tion, as readily conceded by the Corps.
In view of the substantial nature of the constitutional
rights involved, reference to the Corps’ permit procedures
under a wholly different statute is insufficient evidence of
congressional intent to establish such greatly varying permit
procedures under these two interrelated environmental
statutes. The holdings of the courts in Seacoast Anti-Pollu-
tion League, Marathon Oil Company and United States
Steel Corporation, interpreting the language “after op-
portunity for public hearing” in Section 402 of the same
Act as requiring the EPA to hold an adjudicatory hearing,
are applicable to Section 404.
B. Adversary Hearing Required Under the Due Process
Clause.
Does the Due Process Clause of the United
States Constitution mandate that an adver-
sary hearing be granted to an applicent when
the United States Army Corps of Engineers
asserts jurisdiction under Section 404 of
the Federal Water Pollution Control Act,
and refuses to issue a permit authorizing
private work on privately owned property?
In addition to the statutory requirement of a hearing
under the Administrative Procedures Act, there is also a
constitutional due process ground for requiring that an
adversary hearing be held.
It is a basic principle of constitutional law that a party
to an administrative proceeding have an opportunity to be
heard “at a meaningful time and in a meaningful manner.”
Armstrong v. Manzo, 380 U. S. 545, 552 (1965). In Greene
v McElroy, 360 U.S. 474, 79 S.Ct. 1400 (1959), this Court
19
elaborated on the manner in which the administrative pro-
ceeding must be conducted:
“Certain principles have remained rela-
tively immutable in our jurisprudence. One
of these is that where governmental action
seriously injures an individual, and the reason-
ableness of the action depends on fact find-
ings, the evidence used to prove the Govern-
ment’s case must be disclosed to the in-
dividual so that he has an opportunity to
show that it is untrue. . . We have formalized
these protections in the requirements of con-
frontation and cross-examinetion.” 360 U.S.
at 496.
In Mathews vs Eldridge, 424 U.S. 319, 96 S.Ct. 893
(1976), this Court set out three factors which must be
considered in determining what “due process” is required
when governmental action is taken against private interests:
“First, the private interests that will be
affected by the official action; second, the
risk of an erroneous deprivation of such in-
terests through the procedures used, and the
probable value, if any, of additional or
substitute procedural safeguards; and finally,
the Government’s interest, including the
function involved and the fiscal and admini-
strative burdens that the additional or sub-
stitute procedural requirements would en-
tail.” 424 U.S. at 335.
The first factor in Mathews is the nature of the private
interests effected. Although the Fifth Circuit found that
“Buttrey clearly has a strong ‘private interest’ ”, p. 542,
20
the court makes light of this interest by characterizing
Buttrey’s property as “worthless swampland”, p. 542.
The court ignored the fact that most of south Louisiana
(as well as large portions of other states) is worthless swamp-
land, that Buttrey makes his living as a residential developer,
and that this denial of a permit will adversely effect “the
very means by which [he lives]”’, p. 542. By finding that
Buttrey is not “on the very margin of subsistence”, p. 542,
the Court holds that Buttrey has lost the right to contest
arbitrary governmental action and to be protected from
governmental errors.
The Fifth Circuit holds that Buttrey is not entitled to a
hearing because he is merely “applying” for a permit, find-
ing a distinction between revocation of a license and the
initial denial of an application. The court finds that this is
merely a question of government action which simply main-
tains the status quo. It is impossible, however, to understand
the court’s distinction between the initial right to use proper-
ty and the right to continue in the use of property. Moreover
the Court of Appeals’ approach is contrary to the Adminis-
trative Procedure Act which requires a hearing for permit
procedures, regardless of whether it is an initial application
or revocation. 5 U.S.C, §551(9).
The Corps determined that Buttrey’s property consti-
tuted “wetlands”, with the result that even innocuous and
everyday activities on private property are forbidden without
the Army’s permission. Buttrey has a strong private interest
in the right to improve his land, and to protect it from
flooding, 5/which should entitle him to an adjudicatory
5/ = After the Fifth Circuit conceded that Buttrey’s facutal con-
tention regarding flooding “poses a difficult problem” (at p. 546),
the court then out-of-hand rejected the report of Buttrey’s consulting
21
hearing whenever a permit application is denied. Mathews’
first factor, consideration of the private interest at stake,
must be weighed heavily in favor of holding a full hearing.
The Fifth Circuit weighs the second factor set out in
Mathews in favor of the Government by finding that the
Corps gave Buttrey a “paper hearing’’ which adequately
protected him against the risk of an erroneous decision.
This “paper hearing” consisted of Buttrey’s right to review
the comments received in response to publication of But-
trey’s permit application and Buttrey’s response to those
comments.
It is apparent, however, that this so-called “paper hearing”
was constitutionally inadequate. At no time prior to the
denial of the permit were Petitioners advised of the Corps’
tentative position with regard to the application, of any
objections the Corps, itself, had with respect to issuing the
permit or of any independent research or fact-finding under-
taken by the Corps. Petitioners were also never afforded the
opportunity to refute or respond to specific findings or
objections of the Corps. Petitioners were able merely to
respond to public comments received by the Corps, although,
5/ Continued
engineer that the project would “minimize flooding” on the ground
that the report is unsupported by the evidence. The Court, on appeal,
rejected the expert's findings, even though no one had even challenged
it in the district court. The court’s reference to facts concerning past
flooding, the extent of damage and the potential of the project to
prevent flooding should be exactly the types of issues which can only
be determined at a hearing. The Fifth Circuit concluded that the “‘dif-
ficult problem” relating to flooding was not an issue, even though there
is no evidence contradicting the consulting engineer's finding that the
project would “minimize flooding”.
22
obviously, Petitioners never had the chance to confront
the persons making these comments.
This is contrary to the hearing which this Court upheld
in Mathews, In that case, this Court noted:
“A further safeguard against mistake is the
policy of allowing the disability recipient's
representative full access to all information
relied upon by the state agency. In addition,
prior to the cutoff of benefits, the agency
informs the recipient of its tentative assess-
ment, the reasons therefore, and provides a
summary of the evidence that it considers
most relevant. Opportunity is then afforded
the recipient to submit additional evidence
or arguments, enabling him to challenge
directly the accuracy of information in his
file as well as the correctness of the agency's
tentative conclusions. These procedures, again
as contrasted with those before the Court in
Goldberg, enable the recipient to ‘mold’ his
argument to respond to the precise issues
which the decisionmaker regards as crucial.”
424 U.S. at 345-346.
In Morgan v United States, 304 U.S. 1, 58 S.Ct. 773
(1938), this Court stated:
“[A] ‘full hearing’ - a fair and open hearing
- requires more than that. The right to a hear-
ing embraces not only the right to present
evidence, but also a reasonable opportunity
to know the claims of the opposing party and
to meet them. The right to submit argument
23
implies that opportunity; otherwise the right
may be a barren one, Those who are brought
into contest with the Government in a quasi-
judicial proceeding aimed at the control of
their activities are entitled to be fairly advised
of what the Government proposes and to be
heard upon its proposals before it issues its
final command.” 304 U, S. at 18-19.
As with all Corps permit applications, Petitioners had to
blindly submit arguments in support of issuance of a permit,
never knowing the Corps’ position. For all practical purposes,
the “paper hearing” which the Court held to be constitution-
al, consisted solely of the right to respond to unsupported
comments from faceless opponents,
With regard to Mathews’ third factor, concerning fiscal
and administrative considerations, the lower court noted
that the Corps has no administrative law judges assigned to
it and that the burden of adjudicatory hearings would make
the Corps’ responsibilities under Section 404 impossible
to carry out. However, there is absolutely nothing in the
record to support this finding. Except for the number of
applications received each year by the Mobile District, there
is no evidence that a permit process which includes a mean-
ingful hearing would, in those cases when substantial sub-
stantive rights are involved, render Section 404 impossible
to police. It is unknown how many applications involve
substantial substantive rights and how many applicants
will request a hearing. THis statement by the Court of Ap-
peals is mere conjecture, &
6/ The EPA regularly grants adjudicatory hearings whenever sub-
stantive, substantial rights are at issue, See Costle v Pacific Legal Foun-
dation, 445 U.S, 198, 215, 100 S.Ct, 1095 (1980), However, no appli-
24
More importantly, it is obvious from Mathews that the
added impact of full administrative proceedings on the
government is simply to be considered, but will never suffice
to overcome a legitimate need for a due process hearing. In
Mathews, this Court stated that “[f]inancial cost alone is
not a controlling weight in determining whether due process
requires a particular procedural safeguard prior to some
administrative decision” but that “[a]t some point the
benefit of an additional safeguard to the individual affected
by the administrative actions and to society in terms of
increased assurance that the action is just, may be outweigh-
ed by the cost”’. 424 U.S. at 348.
It is overwhelmingly obvious from the record in this
case that substantial substantive rights are involved with
respect to Buttrey’s permit request and that the “due proc-
ess” afforded Petitioners was superficial. An adjudicatory
hearing will add to the Corps’ responsibilities under Section
404, but such hearings are needed to protect citizens against
arbitrary decisions and bolster the anemic “paper hearing”
system which now exists. With the very important private
interest involved here, the very minimal “due process”
afforded Petitioners and the lack of any evidence as to added
costs and administrative burdens, the third test of Mathews
does not support the Court of Appeals’ decision that an
adjudicatory hearing is not required.
Finally, the Court of Appeals misconstrued the circum-
stances surrounding permit applications under Section 404
when it held that only so-called “legislative facts’’ are in-
6/ Continued
cant is ever given an adjudicatory hearing under Section 404, regard-
less of the magnitude or importance of the proposed project and the
complexity of the issues involved.
25
volved. Although the Corps must determine the propriety
of issuing a permit in light of the purpose and intent of
the statute, each permit application arises in an unique
situation and the Corps must investigate, accumulate and
weigh facts to determine if a permit should be issued. The
Corps does not formulate policies or rules of general appli-
cation when it is faced with an application for a permit.
As pointed by the courts interpreting Section 402, this is
the precise type of situation which demands that an adjudi-
catory hearing be held.
A determination on the Buttrey permit application does
not require the resolution of broad policy questions affect-
ing many parties. Rather, it involves the resolution of
“(flacts pertaining to the parties and their businesses and
activities, that is, adjudicative facts . . . intrinsically the kind
of facts that ordinarily ought not to be determined without
giving the parties a chance to know and to meet any evidence
that may be unfavorable to them, that is, without providing
the parties an opportunity for trial.”” 2 K. C. Davis, Adminis-
trative Law Treatise, Section 12:3 at 413. Petitioners’ appli-
cation involves only those facts applicable to their property:
are wetlands involved; if so, to what extent; will water
quality or the environment be adversely affected; if so, in
what ways and to what extent; does the proposed project
provide any public benefits; if so, will the public interest be
best served by authorizing the project.
Neither the Government nor the appellate court identi-
fied the legislative facts which were supposedly involved.
To the contrary, in delving into the merits of the denial of
the permit, the court noted: “[t)he particular facts of this
wetlands controversy now become critically important’,
p. 544. Moreover, the court’s attempt to underplay the
26
usefulness of crossexamining scientific witnesses as ‘‘an
exercise in futility”, p. 547, is meritless on its face. This
is not a case of negating the influence of an expert witness
whom the trier of fact has had an opportunity to meet and
evaluate.
In denying permits, the Corps now relies almost exclusive-
ly on comments by persons whom it has never seen, and the
comments themselves are often the standard objections
produced from a plastic tape and an automatic typewriter.
Cross-examination would help identify those objections
which really apply and truly have merit. Additionally, a full
trial with cross-examination would ease a reviewing court’s
task in determining whether the Corps fully considered and
understood the facts before it.
As previously stated by this Court, again in
Mathews:
“The essence of due process is the require-
ment that ‘a person in jeopardy of serious
loss [be given] notice of the case against
him and opportunity to meet it’. All that is
necessary is that the procedure be tailored,
in light of the decision to be made, to ‘the
capacities and circumstances of those who
are to be heard,’ to insure that they are given
a meaningful opportunity to present their
case.” 424 U.S. at 348-349, citations omitted.
Such is not the case under Section 404. The chance to
respond to outside comments, which is the only input
permitted an applicant, does not provide the applicant with
a “meaningful opportunity” to be heard.
27
With the severe impact the denial of a permit can have
on private landowners, the great likelihood that additional
safeguards will lessen the chance of arbitrary and erroneous
decisionmaking, Petitioners submit that more than the
Army’s “paper hearing” is mandated by the Due Process
Clause of the Constitution before a citizen is deprived of his
livelihood and the use of his land.
CONCLUSION
The Couri of Appeals erred in upholding Congress’ grant
of permitting powers to the Corps, a branch of the Army,
under the FWPCA and in upholding the Corps’ present
procedure for determining its jurisdiction under FWPCA
and for denying Section 404 permits. The United States
Constitution clearly prohibits the military from assuming
civil law enforcement powers. The existence of military
jurisdiction over civilians is of even greater concern where
the Corps’ permitting procedures absolutely forbid adversary
hearings, in violation of the Due Process Clause of the United
States Constitution and the Administrative Procedure Act.
Respectfully submitted,
Chatir k Miata
Chaskeo K. REASONOVER
and
HOWARD J. ETTINGER
of
DEUTSCH, KERRIGAN & STILES
4700 One Shell Square
New Orleans, Louisiana 70139
Telephone: (504) 581-5141
Attorneys for Petitioners ,
John Buttrey and John Buttrey
Developments, Inc.
28
APPENDICE A
John BUTTREY and John Buttrey Developments, Inc.,
Plaintiffs-Appellants,
v.
UNITED STATES of America, et al.,
Defendents-Appellees.
No. 81-3234
United States Court of Appeals, Fifth Circuit.
Nov. 8, 1982.
Appeal from the United States District Court for the
Eastern District of Louisiana.
Before CLARK, Chief Judge, POLITZ and RANDALL,
Circuit Judges.
RANDALL, Circuit Judge:
This is an appeal from a district court judgment rejecting
the claim of plaintiffs-appellants John Buttrey and John
Buttrey Developments, Inc. that the United States Army
Corps of Engineers had improperly denied Buttrey’s applica-
tion for a dredge and fill permit under section 404 of the
Clean Water Act. 33 U.S.C. §1344 (Supp. IV 1980). We
conclude that the procedures afforded Buttrey in the deter-
mination of his permit application violated neither his
statutory nor his constitutional rights and that the deter-
mination itself was neither arbitrary nor capricious. We
therefore affirm the decision of the district court.
A-l
I, THE FACTS AND PROCEEDINGS BELOW.
John Buttrey is a land developer who builds residential
homes. In November, 1978, he applied to the Mobile, Ala-
bama, district office of the Corps of Engineers for a permit
to channelize a half-mile long portion of a small, slow run-
ning stream known as Gum Bayou. The bayou passes near
Slidell, Louisiana, before flowing into the West Pearl River.
Buttrey accompanied his application with a letter from the
Louisiana Stream Control Commission, stating that, having
examined a drawing submitted by Buttrey, it was “of the
opinion that water quality standards of the State of Louisi-
ana will not be violated provided turbidity during dredging
in public waters is kept to a practicable minimum.” He also
included comments from the St. Tammany Parish Mosquito
Abatement District No. 2. The District stated that Buttrey’s
project would help eliminate potential mosquito breeding
areas, provided only that adequate drainage was achieved as
per the proposal to avoid the possibility of creating any
new breeding sites.
The Corps of Engineers issued a formal public notice of
the proposed dredge and fill operation on February 2, 1979.
This notice was distributed to all known interested per-
sons to assist in developing facts on which a decision could
be based. In the ensuing months, the Corps received numer-
ous comments opposing the issuance of the permit: letters
came from the Fish and Wildlife Service of the United
States Department of the Interior, the United States En-
vironmental Protection Agency and the National Marine
Fisheries Service of the United States Department of Com-
merce, and from numerous private organizations and individ-
uals. The comments all tended to raise the same objections.
The proposed project, they claimed, would destroy natural
drainage and sewage treatment capacity, replace a habitat
A-2
and nursery ground for wildlife with residential homes,
perhaps irrevocably damage an aesthetically pleasing wet-
land area, and, finally, increase the risk of flooding, both
downstream and in Buttrey’s neighboring Magnolia Forest
housing development.
The Corps forwarded copies of all of the comments to
Buttrey for review and response, Buttrey requested and
received a six-month extension of time for filing his answer.
On September 28, 1979, he submitted: (1) a memorandum
of law supporting the permit request; (2) an environmental
analysis with comments prepared by Dr. Alfred Smalley,
Professor of Biology at Tulane University; (3) an engineering
discussion with comments prepared by ivan Borgen, a con-
sulting engineer; (4) a letter supporting the application
submitted by the Magnolia Forest Homeowners Association;
(5) three other letters, also supporting the application, from
downstream property owners; and (6) an aerial photograph
of the area. With respect to “any objection which the Corps
may feel to be of such a nature as to warrant denial of the
permit,” Buttrey requested: (1) that he be notified of the
specific objection involved, and that he be permitted to
provide the Corps a full and detailed response; (2) that he
be granted a conference with the Corps in order to resolve
any outstanding objections that could not be resolved on the
basis of the material furnished; and (3) that, should there
exist any objection that might preclude issuance of the per-
mit, he be granted an adversary hearing, and an opportunity
to cross-examine witnesses. The responsible official, Dis-
trict Engineer Col. Ryan, responded that Corps regulations
preclude the possibility of a full adversary hearing, but that
he would be happy to meet with Buttrey informally. Reserv-
ing his right to demand a full hearing, Buttrey accepted the
invitation, and met with Col. Ryan on February 8, 1980.
A-3
The parties remained unable to resolve their differences.
On April 2, 1980, the Corps issued an “Environmental
Assessment” and an “Evaluation of the Effects of the Dis-
charge of Dredged or Fill Material Into Waters of the U.S.
Using the Section 404(b) Guidelines,” and denied Buttrey's
permit application. After extensively reviewing its evaluation
process, Col. Ryan made the following “evaluation and find-
ings”:
Based upon review of the application, con-
ducting an environmental assessment, prepara-
tion of a 404(b) evaluation, and consideration
of all comments by other agencies and the
public, and after weighing all known factors
involved in the proposed action, I find in con-
currence with national policy, statutes and
administrative directives, when the total
adverse effects of the proposal are weighed
against the benefit to the using public, the
public interest would best be served by
denial of the requested permit.
The Corps noted particularly that “the environmental
effects associated with implementation of the proposal
are significant and adverse.”
One month later, having exhausted the procedures provid-
ed by the Corps of Engineers, Buttrey filed with the United
States District Court for the Eastern District of Louisiana
an action for damages and declaratory and injunctive relief.
Buttrey’s complaint asserted: (1) that the Corps had no
jurisdiction over the project; (2) that even assuming the
Corps had jurisdiction, its own regulations exempted the
proposed project from regulation under section 404; and
(3) that, as applied in this case, the Clean Water Act and
A4
the regulations thereunder were unconstitutional. After a
hearing on August 21, 1980, and upon consideration of
the Corps’ motion for a protective order and Buttrey’s
memorandum in opposition, the district court authorized
the production of certain documents and the taking of
depositions from Col. Ryan and Donald Conlon (Chief of
the Regulatory Functions Branch). Both Buttrey and the
Corps submitted motions for summary judgment and memo-
randa in support of their motions, and, following a hearing
on the cross-motions, both parties submitted post-hearing
memoranda “on the issue of whether an adjudicatory hearing
is required when .. . the jurisdiction of the Corps. . . is
challenged.”” On April 1, 1981, the district court issued its
opinion denying Buttrey’s motion for summary judgment
and granting summary judgment for the Corps. The district
court held:
(1) where the Corps’ regulatory juris-
diction over a proposed “dredge and fill”
project is challenged, an adjudicatory hearing
is not required for the purpose of determin-
: ing the propriety of the jurisdictional claim;
(2) the Corps has jurisdiction to require
permit issuance for the project in question:
(3) the procedures employed by the
Corps in the processing of plaintiffs’ permit
were not unconstitutional;
(4) on the basis of the administrative
record, the permit was properly denied;
and
(5) plaintiff's claim for damages, allegedly
due to either an unconstitutional taking of
property without compensation or, alterna-
tively, for the delay plaintiff has incurred as
a result of the Corps’ permitting process, is
denied.
Judgment was entered accordingly, and Buttrey now appeals.
On appeal, Buttrey contends that he was denied his con-
stitutional and statutory rights because the Corps refused to
grant him a trial-type hearing, that the administrative record
was incomplete, that the procedures employed by the Corps
in determining that it had jurisdiction were improper, and
that the permit was arbitrarily and capriciously denied.
Il. WHAT KIND OF HEARING?
Buttrey’s claim that he was wrongfully denied a full trial-
type hearing is both statutory and constitutional. The statu-
tory claim is based on a reading of the Administrative Pro-
cedure Act, 5 U.S.C. §554(a) (1976), together with section
404(a) of what is now called the Clean Water Act, 33 U.S.C.
§ 1344(a) (Supp. IV 1980). The constitutional claim is based
on the due process clause. Because the statutory argument is
the more straightforward, we shall address it first.
A. The Administrative Procedure Act.
The formal trial-type hearing procedures that Buttrey
wants are set out in sections 7 and 8 of the Administrative
Procedure Act, 5 U.S.C. § §556-557 (1976), and are trigger-
ed by language at the beginning of section 5: “This section
applies . . . in every case of adjudication required by stat-
ute to be determined on the record after opportunity for an
A-6
agency hearing... .” 5 U.S.C. §554(a) (1976). Since in
the present case the Corps has acted under the authority
of section 404 of the Clean Water Act, the determinative
issue is whether section 404 “require[s]” disputes to be
“determined on the record after opportunity for an agen-
cy hearing.” Buttrey claims that it does, and the govern-
ment claims that it does not. We agree with the govern-
ment.
Section 404 seems relatively simple. It says, quite plainly,
that the Corps of Engineers “may issue permits, after notice
and opportunity for public hearings for the discharge of
dredged or fill material into the navigable waters at specified
disposal sites.”’ 33 U.S.C. § 1344(a) (Supp. IV 1980). Buttrey
argues that “public hearings” means the trial-type hearing
provided for in the APA. There are, however, many dif-
ferent kinds of “hearing,” and resolution of the issue must
turn on “the substantive nature of the hearing Congress
intended to provide.” Seacoast Anti-Pollution League vy.
Costle, 572 F.2d 872, 876 (Ist Cir.), cert. denied, 439 U.S.
824, 99 S.Ct. 94, 58 L.Ed.2d 117 (1978) (footnote omitted).
Three other circuits have construed virtually identical
language in section 402 of the Clean Water Act, 33 U.S.C.
§ 1342(a)(1)(1976) (“after opportunity for public hear-
ing”), to require a trial-type hearing, Seacoast, supra; Mara-
thon Oil Co, v. Environmental Protection Agency, 564 F.2d
1253 (9th Cir. 1977); United States Steel Corp. v. Train,
556 F.2d 822 (7th Cir. 1977). The question, then, is whether
section 402 can be distinguished from section 404, despite
the similarity of language and despite the fact that both
sections are part of the same statutory scheme.
We begin with the observation that none of the three
opinions construing section 402 held that the phrase found in
A-7
both sections—“after opportunity for public hearing[s]’’-
was so clear that there was no need to look behind it for
other indications of congressional intent. See Costle v. Pa-
cific Legal Foundation, 445 U.S. 198, 218, 100 S.Ct. 1095,
1107, 63 L.Ed.2d 329 (1980) (commenting that statute's
“opportunity for public hearing” requirement is “rather
amorphous’’). It is, moreover, very possible “for a term to
have different meanings, even in the same statute.” Environ-
mental Defense Fund, Inc. v. Costle, 631 F.2d 922, 927
(D.C.Cir.1980) (footnote omitted), cert, denied, 449 U.S.
1112, 101 S.Ct. 923, 66 L.Ed.2d 841 (1981). We therefore
look to the legislative history for help in determining what
Congress meant when it called for “hearings”’ in section 404.
This is one of those rare instances when a statute’s history
leaves no room for doubt. Congress did not intend that the
“public hearings” called for in section 404 be trial-type
hearings on the record. When confronted with a choice
between a House version of section 404, which invested
permit authority in the Corps of Engineers, and a Senate
version, which invested authority in the EPA, Congress
consciously chose the House version. The Corps of En-
gineers had apparently been using its simplified procedures
to issue dredge and fill permits (under a related statute) for
many years. See Rivers and Harbors Appropriation Act of
1899, §10, 33 U.S.C. §403 (1976 & Supp. IV 1980).
When Senator Muskie presented the Conference Committee
report on the Senate floor, he explained:
The Conferees were uniquely aware of the
process by which the dredge and fill permits
are presently handled and did not wish to
create a burdensome bureaucracy in light of
the fact that a system to issue permits already
existed.
A-8
118 Cong. Rec. 33,699 (1972) (prepared remarks of Sen.
Muskie, presented on behalf of the Conference Committee
but not delivered orally). Congress consciously chose to
use the simplified permit procedures that the Corps had
developed in administering its existing dredge and fill per-
mit program. Congress did not intend to burden the im-
plementation of section 404 with a trial-type hearing re-
quirement, and we decline to do so today. See, e.g., Nofelco
Realty Corp. v. United States, 521 F.Supp. 458 (S.D.N.Y.
1981) (also construing section 404 not to require trial-
type hearings); cf United States v, Independent Bulk Trans-
port, Inc., 480 F.Supp. 474, 480 (S.D.N.Y. 1979) (“The
decision by Congress to confer authority for enforcement of
section 1321(b)(6) upon the Coast Guard [rather than the
EPA] reflects a desire to dispense with procedural intrica-
cies.”’).
The subsequent history of the Clean Water Act reinforces
our conclusion that section 404 does not require trial-type
hearings. Congress amended section 404 and several other
provisions of the Act in 1977, but again chose to leave the
Corps’ existing permit granting system intact. The Senate
and House reports on the amendments both impliedly
approved the Corps’ section 404 regulations. S. Rep. No.
370, 95th Cong., Ist Sess. 80, reprinted in [1977] US.
Code Cong. & Ad. News 4326, 4405; H. R. Conf. Rep.
No. 830, 95th Cong., Ist Sess. 105, reprinted in [1977]
U.S. Code Cong. & Ad. News 4424, 4480. Their only over-
riding concern about the Corps’ section 404 procedures
seems to have been for eliminating delay and red tape in
processing applications. See, e. g., S. Rep. No. 370, at 80,
reprint at 4405 (section entitled “Unnecessary regulation
and red-tape’’”); H. R. Conf. Rep. No. 830, at 104, reprint
at 4479 (recommended procedures “[t]o expedite the
consideration of permit applications, and to avoid unneces-
sary delay”). Indeed, we note that advocates on the “‘ir.-
A-9
dustry” side of the water pollution controversy complain
bitterly about the Corps’ “complex and unnecessary permit
processing procedures.” Parish & Morgan, History, Practice
and Emerging Problems of Wetlands Regulation: Reconsider-
ing Section 404 of the Clean Water Act, 17 Land & Water
L.Rev. 43, 78 (1982). In short, requiring trial-type hearings
would do violence to the obvious congressional purpose of
making section 404 processing procedures as simple as
possible.
The “public hearings” language in section 404 was,
in fact, written into the statute to protect the public, not
permit applicants. As Professor Davis has pointed out,
“when many are affected, [the term “public hearing”)
usually means a speech-making hearing rather than a [trial-
type] hearing with a determination on the record.” 2 K.
Davis, Administrative Law Treatise §12:7, at 434 (2d ed.
1979). This circuit has already decided that the “public
hearings” referred to in the Corps of Engineers’ dredge
and fill permit regulations means the kind of “speech-mak-
ing” hearing described by Professor Davis: “[(1]f sufficient
public interest is shown in [a] project, then the District
Engineer of the Corps is authorized to conduct a public,
informal hearing at which both proponents and opponents
of the project are allowed to be heard.” 7Jaylor v. District
Engineer, 567 F.2d 1332, 1338 (Sth Cir. 1978) (construing
33 C.F.R. §209.120(g)(4) (superseded 1977)). See also
Sierra Club v. Alexander, 484 F.Supp. 455, 470-71 (N.D.
N.Y.), aff'd mem., 633 F.2d 206 (2d Cir. 1980) (reason for
public hearings by federal agencies is to elicit “input” from
the public to assist agency in determining whether a pro-
posed act is in the public interest). The current regulations
are essentially the same as those construed in Taylor, see 33
A-10
C.F.R, §327.8 (1981), | and foreclose our reaching any con-
clusion different from the one reached in Taylor:
Public hearing means a public proceeding
conducted for the purpose of acquiring in-
formation or evidence which will be consider-
ed in evaluating a proposed Department of
the Army permit action, or Federal project,
and which affords to the public the op-
portunity to present their views, opinions,
and information on such permit actions or
Federal projects.
33 C.F.R. §327.3(a) (1981). It therefore follows that “pub-
lic hearing[s]"’ means exactly what the regulation says it
means, and that Buttrey is thus not entitled under section
404 of the Clean Water Act and section 5 of the Administra-
tive Procedure Act to insist on a trial-type oral hearing.
B. The Due Process Clause.
Buttrey’s argument that he is nonetheless entitled
1/ The only really material difference between the old regulations,
33 C.F.R. §209.120(g)(4) (1972) (superseded 1977), and the current
regulations, 33 C.F.R. §327.8 (1981), concerns the right of cross-
examination. The old regulations provided that each party had the
right to make a rebuttal statement, but that “cross-examination is not
usually permitted.” The current regulations also provide for rebuttal
statements, but then add that “[c]ross-examination of witnesses shall
not be permitted.” Since the difference in actual practice between the
old version and the new seems to be virtually non-existent, see Regula-
tory Programs of the Corps of Engineers, 42 Fed.Reg. 37, 122-23
(1977) (negative implication that the hearing procedures were not
materially altered), we do not think that the difference affects our
analysis.
A-11
to a trial-type hearing under the due process clause, U.S.
Const. amend. 5, presents a much more difficult issue. While
the government claims that Buttrey’s dispute with the Corps
is mostly legal and concerns only “legislative” facts and
policy, Buttrey has continued to insist throughout these
proceedings that the case turns entirely on precisely those
kinds of narrowly defined questions of “‘adjudicative”’ fact
that entitle an administrative litigant to an oral, trial-type
hearing on the record. We agree with the government. Al-
though the precedents holding that a party who directly
challenges an agency’s material factual determinations may
nevertheless be denied a trial-type hearing have generally
been written in the most limiting language possible, 2 we
See, e. g., Califano v. Yamasaki, 442 U.S. 682, 696, 99 S.Ct.
2545, 2555, 61 L.Ed.2d 176 (1979) (oral hearing not required in case
involving “relatively straightforward matters of computation for which
written review is ordinarily an adequate means to correct prior mis-
takes”); Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172
(1977) (three-suspensions-and-y ou-lose-your-driver’s-license rule held to
be so narrow that oral hearing not required); Weinberger v. Hynson,
Westcott & Dunning, Inc., 412 U.S. 609, 621, 93 S.Ct. 2469, 2479,
37 L.Ed.2d 207 (1973) (“We cannot impute to Congress the design
of requiring, nor does due process demand, a hearing when it appears
conclusively from the applicant’s ‘pleadings’ that the application cannot
succeed,”);Central Freight Lines, Inc. v. United States, 669 F.2d 1063,
1068 (5th Cir. 1982) (commenting that “[c]ross-examination is. . .
not an absolute right in administrative cases” partly because 127 of
some 1600 witnesses already had been cross-examined); ECEE, Inc. v.
Federal Energy Regulatory Commission, 645 F.2d 339, 352 (5th Cir.
1981) (“informal conference and written comment” provision enough
to protect private interests in certain well-determination controversies);
Superior Trucking Co. v. United States, 614 F.2d 481 (5th Cir. 1980)
(“paper hearing” is enough to protect party protesting interlocutory
injunction in ICC licensing case). The following is typical of the kinds
of caveats that appear in all the cases: “In short, all we hold today is
that in this case, on these facts, this plaintiff was not denied due
process of law by the City’s procedure as here applied."’ Basciano v.
Herkimer, 605 F.2d 605, 612 n.8 (2d Cir. 1978) (trial-type hearing
not required only on facts of case sub judice) (emphasis in original),
cert, denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979).
A-12
find that under the facts of this case, and under the Corps’
regulations as applied here, Buttrey’s “paper hearing” gave
him all the process which was due him.
The starting point for any inquiry into how much “pro-
cess” is “due” must be the Supreme Court’s opinion in
Mathews vy. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d
18 (1976).3 Implicitly adopting the three-part analysis
developed by Judge Friendly the previous year, Friendly,
“Some Kind of Hearing,” 123 U.Pa.L.Rev. 1267, 1278
(1975), the Court set out the three most important con-
siderations that a court should balance:
First, the private interest that will be affected
by the official action; second, the risk of an
erroneous deprivation of such interest
through the procedures used, and the prob-
able value, if any, of additional or substitute
procedural safeguards; and finally, the Gov-
ernment’s interest, including the function in-
volved and the fiscal and administrative bur-
dens that the additional or substitute proce-
dural requirement would entail.
424 U.S. at 335, 96 S.Ct. at 903 (citation omitted). The
3/ We note parenthetically that although there is a Fifth Circuit
opinion almost directly on point, Taylor v. District Engineer, 567
F.2d 1332, 1338 (5th Cir. 1978) (upholding the Corps’ permit granting
procedures against a due process challenge), we choose not to rely on
it as the exclusive support for our decision. The opinion in Taylor
briefly noted that the Corps’ regulations, as applied in that case, were
constitutional, but did not refer to Eldridge or any of the other due
process cases. While we fully agree with the end result in Taylor, we
think that the most prudent course—in this area where so much de-
pends upon the facts of each case—is to undertake a full analysis of
the question ourselves,
A-13
first and third considerations pose the fewest problems.
Buttrey clearly has a strong “private interest” in turning
what is now commercially worthless swampland into resi-
dential homes, which he could then sell. It is equally clear
that he is also not a person “on the very margin of sub-
sistence” and that denial of his application will not de-
prive him of “the very means by which to live.” 424 U.S.
at 340, %6 S. Ct. at 905. The government, moreover, is doing
nothing more than denying him a permit; it is not taking
action against him. The distinction is important, for, as Judge
Friendly has remarked, “[r] evocation of a license is far more
serious than denial of an application for one; in the former
instance capital has been expended, investor expectations
have been aroused, and people have been employed.” Friend-
ly, supra, at 1296. The government, in other words, has not
taken anything of Buttrey’s and made it worth less; rather,
it has merely told Buttrey that (at least under his current
proposal) he must keep what he has without attempting
to make it worth more. This distinction, we hasten to add,
is not a disguised attempt to revive the discredited doctrine
of “rights” and “‘privileges.”” We draw the distinction merely
in an attempt to determine, in the words of the Eldridge
opinion, what weight we should give to “the private interest
that will be affected by the official action,” 424 U.S. at 335,
96 S.Ct. at 903. And like the Eldridge court—which decided
that the disabled worker was entitled to less process than the
welfare recipient-we decide that Buttrey’s interest, while
important, is not great enough to demand the imposition of
full trial-type procedures without further careful analysis.
The third Eldridge consideration, also fairly uncomplicat-
ed, demands that we examine the “fiscal and administrative
burdens” that trial-type proceedings would entail. 424 U.S.
A-14
at 335, 96 S.Ct. at 903. We understand that a routine im-
position of trial-type procedures on the Corps would en-
tail a substantial, and probably unbearable burden, Col.
Ryan has testified that the Mobile District alone processes
some 1200 applications per year, Ryan Deposition at 18,
and the government has informed us that the Corps present-
ly has no administrative law judges assigned to it. Brief for
Appellee at 21 n.13. Trial-type hearings, if routinely or
even often granted, would not simply impose a “burden”
on the Corps. Such a requirement in all likelihood would
make it impossible for the Corps to carry out its Congression-
al mandate under section 404 ut all. The Corps’ situation is
not atypical. In connection with a related water pollution
control program, for instance, the Supreme Court has em-
phasized that if the EPA were required to grant oral hearings
in “most” of its 2200 yearly applications, there would be
“serious questions about the EPA's ability to administer the
. « « program.” Costle v, Pacific Legal Foundation, 445
U.S. 198, 215, 100 S.Ct. 1095, 1105, 63 L.Ed.2d 329
(1980). These facts lead us to conclude that absent fairly
unusual circumstances, and under the present regulations
as applied in this case, the Corps should not be required
routinely to grant requests for trial-type hearings.
Finally, the second and most complicated Eldridge con-
sideration requires us to balance “the risk of an erroneous
deprivation of [the administrative litigant’s} interest through
the procedures used” against the “probable value, if any,
of additional or substitute procedural safeguards.” 424
US. at 335, 96 S.Ct. at 903.
We preface what follows with a word of warning.
Any inquiry under the second Eldridge heading must neces-
sarily be very fact-specific, A procedure that seems perfect-
ly reasonable under one set of circumstances can, with only
A-15
a slight modification of the facts, suddenly “smack .. . of
administrative tyranny.” Larry v, Lawler, 605 F.2d 954,
962 (7th Cir. 1978), This area of the law therefore ill-lends
itself to sweeping generalizations, and all the less so because
of the variegated contexts in which the problems arise:
high-stakes administrative cases such as the present one,
where each side is skillfully represented by experienced
counsel and where no expense is spared, little resemble the
context in which many of the leading cases have arisen,
Many of the leading decisions are social security, welfare,
or similar cases, where the plaintiffs may not be represented
by counsel and may not fully understand their rights. The
only truly general principle that appears in all the decisions
seems to be that the more articulate an administrative plain-
tiff is likely to be, the more chances he has effectively to
rebut the agency’s case against him, and the more his “‘fac-
tual” objections shade over into the area of legislative fact
and policy, the less likely it is that he will be entitled—de-
pending upon the entire three-part Eldridge test—to a full
trial-type hearing, held on the record with a right to cross-
examine witnesses. Each case, in other words, will depend
upon the nature of the facts challenged and upon the ef-
fectiveness of the procedures afforded the plaintiff for
challenging them. 4
4/ =n a case such as the present one, where the plaintiff has already
been afforded an extensive “paper hearing.” the threshold issue is
whether he can “understand the case against him and . . . present his
arguments effectively in written form.” Friendly, supra, at 1281, C7.
Goldberg v. Kelly, 397 U.8, 254, 269, 90 S.Ct. 1011, 1021, 26 L.Ed.2d
287 (1970) (“Written submissions are an unrealistic option for most
[welfare] recipients, who lack the educational attainment necessary
to write effectively and who cannot obtain professional assistance,”’);
Gray Panthers v. Schweiker, 652 F.2d 146, 156 (D.C, Cir, 1981)
(same), Since, as we have intimated above, Buttrey has been skillfully
represented by experienced counsel throughout these proceedings, we
need not concern ourselves with the kinds of questions that troubled
the courts In Goldberg and Grey Panthers.
A-16
The procedures adopted by the Corps of Engineers in
reviewing Buttrey'’s section 404 permit application afforded
him considerable protection. The Corps in effect gives
applicants a “paper hearing.” After public notice of the
pending application has been given, the Corps usually receives
numerous comments from other federal agencies and the
interested public. As the comments arrive, they are (and were
in this case) immediately forwarded to the applicant. The
pertinent regulation provides:
The applicant must be given the opportunity
to furnish the District Engineer his proposed
resolution or rebuttal to all objections from
Government agencies and other substantive
adverse comments before final decision will
be made on the application,
33 C.F.R. §325.2(a)(3) (1981). Understandably eager to
write the most effective rebuttal possible, Buttrey asked for
and got six months within which to prepare his response.
It ultimately included a ten-page memorandum of law,
a nine-page technical analysis by a biology professor at
Tulane University, and an elaborate engineering aralysis
commissioned from a consulting engineer. Buttrey also
demanded and got a chance to meet informally with the
District Engineer, Col. Ryan, At the end of all this, the
Corps nevertheless decided to deny the application. Col.
Ryan filed three detailed documents supporting and explain-
ing his decision: a four-page “Environmental Assessment,”
see 33 C.F.R. §325.2(a)(4), a three-page evaluation of the
project under the Corps’ section 404(b) or ‘wetlands’
guidelines, see 33 C.F.R. §325.2(a)(6); 40 C.F.R. §230,
and an eight-page document entitled “Findings of Fact,”
reviewing all of the documents and information used in
reaching the decision, see 33 C.F.R. §325.—2(a)(6). These
A-17
three documents were then mailed to Buttrey pursuant to
33 C.F.R. §325.2(aX(7).
All of this is, we think, a great deal of “process.” The
question only remains whether the imposition of trial-type
procedures could reduce the risk of error enough to make
the reform worth the cost.
The particular facts of this wetlands controversy now
become critically important. Buttrey complains generally,
first, that “there is no scientific basis for the conclusions”
reached in Col. Ryan’s findings of fact, Appellant's Initial
Brief at 9, and second, that his proposed project would nor
have “adverse environmental impact,” Appellant's Reply
Brief at 3. He also makes two more specific factual argu-
ments. He claims, first, that his project will not lessen down-
stream water quality, Initial Brief at 14, and second, that his
project is necessary to prevent flooding in his adjacent
Magnolia Forest subdivision, Initial Brief at 16, 30. Buttrey
freely concedes that he is claiming, in effect, that “[i]f the
Corps’ facts were true, [I] would have no case.”’ Reply Brief
at 3. For Buttrey, this case is all about these few specific
questions of “adjudicative” fact. See Reply Brief at 9-10
(conceding that the facts listed in this paragraph are the
only essential ones in dispute), For Buttrey, in short, this
case involves no policy questions, no broader questions of
“legislative” fact. See id.
We think that Buttrey has fundamentally misconceived
the purpose of section 404 of the Clean Water Act, and
further, that he does not upderstand the nature of the
Corps’ administrative process. re
5/ Buttrey contends, for instance, that the Corps’ denial of his per-
mit application is invalid partly because it remains “totally unsupported
by any admissible evidence.” We reject this argument for the reasons
A-18
Section 404 of the Clean Water Act was enacted “to
restore and maintain the chemical, physical, and biological
integrity of the Nation’s waters.” 33 U.S.C. §1251(a) (1976)
(section entitled “Congressiona! declaration of goals and
policy”). Certain value judgments have already been made.
The regulations promulgated pursuant to the Act—whose
substantive (rather than procedural) validity Buttrey does
not challenge—expressly prohibit exactly the kind of factual
maneuvering Buttrey is attempting to engage in.
Before issuing any dredge or fill permit, the Corps is
required to conduct a “public interest’ review. This review
considers virtually all respects of a project: “conservation,
economics, aesthetics, general environmental conc:rns,
historic values, ‘ish and wildlife values, flood damage pre-
vention, land use, navigation, recreation, vaier supply,
water quality, energy needs, safety, food production, and,
in general, the needs and welfare of the people.” 33 C.F.R.
§320.4(a)(1) (1981). The regulations further provide that
the review may not be “piecemeal”—a few acres here, a
small tract there. The rationale is simple. “Although a parti-
cular alteration of wetlands may constitute a minor change”’,
the regulations note, “the cumulative effect of numerous
such piecemeal changes often results in a major impairment
of the wetland resources.” 33 C.F.R. §320.4(b)(3). Specifi-
cally, “[{w] hen disruptions in flow and circulation patterns
occur, apparently minor loss of wetland acreage may result in
5/ Continued
given in W. Gellhorn, C, Byse & P. Strauss, Administrative Law 730-51
(7th ed, 1979) (collecting and analyzing cases). The leading Supreme
Court decision is Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420,
28 L.Ed.2d 842 (1971) (hearsay evidence may constitute “substantial
evidence” for purposes of reviewing agency action). Buttrey cites no
cases holding to the contrary.
A-19
major losses through secondary impacts.” 40 C.F.R. §230.41
(b) (1091). The regulations further state that the Corps shall
begin its analysis of a proposed project with the presumption
that the “unnecessary alteration or destruction of [wetlands]
should be discouraged as contrary to the public interest.”
33 C.F.R. §320.4(b)(1). This presumption is very strong.
See 40 C.F.R §230.1(d) (“The guiding principle should be
that degradation or destruction of special sites [“‘such as fill-
ing operations in wetlands’’] may represent an irreversible
loss of valuable aquatic resources”). To overcome it, an
applicant must make three very difficult showings: first,
that “the benefits of the proposed alteration outweigh the
damage[s] ,”” second, that “the proposed activity is primarily
dependent on being located in, or in close proximity to the
aquatic environment,” and third, that the proposed project
cannot be located on any “feasible alternative sites.” 33
C.F.R. §320.4(b)(4). In light of all of the above, it would
hardly be putting the case too strongly to say that the
Clean Water Act and the applicable regulations do not
contemplate that wetlands will be destroyed simply because
it is more convenient than not to do so. See 40 C.F.R. §
230.1(c). Congress and the agency have already determined
that “[w]etlands are vital areas that constitute a productive
and valuable public resource,” 33 C.F.R.§320. 4(b) (1);
see 33 U.S.C, §1251 (1976), and Buttrey may not challenge
that determination here.
Buttrey has nevertheless attempted to challenge these
policies indirectly by presenting his objections in the guise of
arguments about “adjudicative” facts. He argues, for in-
stance, that the Corps should have considered the public
benefits of the $3 million or so in public jobs that the con-
struction of his proposed housing addition would create.
Appellant’s Initial Brief at 13. But this is not the kind of
A-20
“economic” benefit the Corps’ public interest review is
supposed to consider. See Regulatory Programs of the Corps
of Engineers, 42 Fed.Reg. 37, 122, 37, 122, 37, 125-26
(1977) (reviewing history and purpose of the “public in-
terest” review process). Again, Buttrey claims that his project
will not harm the environment because the 40 acres at
stake in this lawsuit are a “mere flyspeck” in relation to the
entire Pearl River watershed. See Appellant’s “Memorandum
of Law in Support of Section 404 Permit Request” at 10,
Administrative Record at tab 29. Stripped of its “adjudi-
cative” fact disguise, this “factual” objection amounts to a
demand that the Corps engage in precisely the kind of limited
review of “piecemeal changes” that the regulations forbid.
33 C.F.R. §320.4(b)(3) (quoted in the preceding paragraph).
Buttrey’s related contention that his project would not
lessen downstream water quality is also, in effect, no more
than an assertion that the policies set out in the Corps’
wetlands regulations are fundamentally unsound. His argu-
ment manifestly does not concern “adjudicative” facts.
Part of the confusion about the water quality issue stems
from the fact that the parties have confused two related
questions - suspended silt pollution from the dredging opera-
tions themselves and the long term effects from the loss of
the purifying natural filtration function of wetlands. Buttrey
insists that water quality is an issue, but the only evidence
he has presented is a letter, dated February 19, 1979, from
the Louisiana Stream Control Commission stating that
“water quality standards of the State of Louisiana will not
be violated provided turbidity during dredging in public
waters is kept to a practicable minimum.” This is a compli-
cated way of saying that the Stream Commission is wor-
ried that dredging may muddy the waters, but that the
problem is not severe enough to warrant cancelling the
A-21
project. A glance at the statutory authority pursuant to
which the letter was written reinforces this impression. The
letter refers to a Louisiana statute, 1975 La.Acts 712 (codi-
fied at 56 La.Rev.Stat.Ann. §1439(5)) (repealed 1980),
and to sections 303 and 401 of the Clean Water Act, 33 U.S.
C. §§1313, 1341 (1976 & Supp. IV 1980). 6 But all of
these statutes concern only water pollution?” —an issue that
has nothing at all to do with the unique role that wetiands
play in purifying water. See 33 C.F.R. §320.4(b)(2)(vii)
(1981) (“Wetlands through natural water filtration processes
serve to purify water.”’); 40 C.F.R. §230.41(b) (same). The
Corps, on the other hand, has found that Buttrey’s project
would have “tan adverse impact on . . . a wetland having
significant functions of water quality maintenance.”’ Attach-
ment 2 at 2, Findings of Fact, Administrative Record at
tab 48. Beyond his general assertion that his forty-acre
wetland is too small to matter to anyone, Buttrey has not
challenged this determination. The material facts about
downstream water quality therefore remain undisputed.
6/ The letter also mentions section 404 of the Clean Water Act,
which was not then applicable to Louisiana. The 1977 additions to
section 404 do provide for coordination with approved state regulatory
schemes, but Louisiana did not establish such a plan until 1980, see 30
La.Rev. Stat.Ann, § §1091-1096 (West Supp. 1982) (state regulation of
“dredge and fill” operations to begin Jan, 1, 1980).
‘1/ Although the Louisiana statute cited in the text, 1975 La.Acts
712 (repealed 1980), refers to five federal statutes, all five concern
only “water pollution” in the traditional sense, not the kind of water-
quality lessening that occurs after the completion of dredge and fill
operations in wetlands; moreover, the letter itself makes clear that it
is concerned only with the “water quality standards of Louisiana
provided for under Section 303” of the Clean Water Act. Section 303.
83 U.S.C. §1313 (1976), in turn, also only concerns itself with “ef.
fluents” and other forms of water pollution in the traditional sense.
A-22
Buttrey complains that these findings nevertheless lack a
“scientific basis.” We think that once one accepts the value
judgments already made in section 404 and in the regulations
thereunder, the “scientific” basis of the Corps’ findings in
this case becomes clear.
Buttrey’s last factual contention poses a more difficult
problem, While he insists that the proposed project will help
prevent flooding in the adjacent Magnolia Forest subdivision,
several of the public commentators have declared with equal
vigor that the bayou does not present a flooding problem
even in its present “unimproved” state. Although the regula-
tions do require the Corps to consider “flood damage preven-
tion” in making its public interest review, 33 C.F.R. §320.4
(a1) (1981), the Corps concluded only that “[d] ata sub-
mitted [are] insufficient to determine what impact the
project will have on potential downstream flooding.”’ Attach-
ment 1, at 2, Findings of Fact, Administrative Record at
tab 48. Indeed, while the two-inch thick administrative
record in this case contains no probative evidence about
the flooding controversy, 8/ the regulations suggest that
destroying wetlands may increase the chances of local flood-
ing. See 40 C. F. R. §230.41(b) (1981). If Buttrey wanted
the Corps to appreciate the full danger that the bayou
posed to his Magnolia Forest subdivision, he should have
presented evidence on the issue. Having chosen not to do
so, he cannot now fairly complain that he was denied proce-
‘dural due process because the data were insufficient.
8/ The record does contain a report from Buttrey’s consulting
engineer, Ivan Borgen, recommending that the bayou be dredged “to
minimize flooding within portions” of the Magnolia Forest subdivision,
but the report simply states its conclusion without explanation. Noth-
ing in the record indicates when the bayou has flooded in the past,
how bad the flooding was, what kind of damage was done, or if it
seems likely that similar damage is to be expected if Buttrey’s project
is not allowed to proceed.
A-23
Against this factual background we must now assess “the
probable value. . . of additional or substitute procedural
safeguards.” 424 U.S. at 335, 96 S.Ct. at 903. We conclude
that additional procedural safeguards, including the imposi-
tion of trial-type procedures, would do virtually nothing to
reduce the chances of error.
The regulations themselves—and again we stress that But-
trey has not even mentioned their substantive provisions—in
effect foreclose the kinds of “factual” arguments Buttrey has
made throughout these proceedings. See generally Ames &
McCracken, Framing Regulatory Standards to Avoid Formal
Adjudication: The FDA as a Case Study, 64 Calif.L.Rev. 14
(1976) (recommending that agencies draft fact-specific
regulations to eliminate as many full adjudications as pos-
sible). Congress and the Corps have wisely decided that each
litigant should not be able to insist upon a de novo de-
termination of the value of wetlands to the American public.
The rationale, as expressed by Professor Davis, seems to be
that “evidentiary hearings are usually appropriate only for
resolving disputes about facts pertaining to a particular party
and are usually inappropriate for resolving other kinds of
questions, such as questions of law, policy, discretion, or
broad and general facts that help decide questions of law or
policy.” 2 K. Davis, supra, §13:6, at 237 (Supp. 1982). In
any event, we think that disputes over “the ‘legislative’
facts and the proper formulation of policy or interpreta-
tion of law to be applied to the case” are best resolved
through simple submission of carefully considered written
arguments. See Gellhorn & Robinson, Summary Judgment
in Administrative Adjudication, 84 Harv.L.Rev. 612, 630-31
(1971) (footnote omitted).
Even if this case did depend upon conflicting scientific
testimony, as Buttrey claims it does, the right of cross-
A-24
examination provided by full trial-type procedures would
probably serve little purpose. Many courts and commen-
tators have concluded that cross-examination of scientific
witnesses in a case of this sort is often, if not always, an
exercise in futility. See, e.g., Eldridge, supra, 424 U.S. at
343-44, 96 S.Ct. at 907 (noting probable worthlessness of
opportunity to cross-examine expert physician specialists);
Basciano vy. Herkimer, 605 F.2d 605, 610-11 (2d Cir. 1978)
(“{T] he value of cross-examination to discredit a profession-
al medical opinion at best is limited.”’), cert. denied, 442
US. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979); 3 K. Davis,
supra, §15:10, at 184 (2d ed. 1980) (recommending that
cross-examination be “rarely allowed” in cases involving
mixtures of legislative fact and judgment); Ames & Mc
Cracken, supra, at 35 (“Cross-examination. . . will be most
cumbersome when the issues are complex. . . .”’); Friendly,
supra, at 1285 (“in many such [“recondite scientific or
economic”] cases the main effect of cross-examination is
delay.”’); Korn, Law, Fact and Science in the Courts, 66
Colum.L.Rev. 1080, 1086-87 (1966) (the value of cross-
examination “is often negligible where the dispute turns on
matters of expert judgment rather than veracity”); but cf.
Boyer, Alternatives to Administrative Trial-type Hearings
for Resolving Complex Scientific, Economic, and Social
Issues, 71 Mich. L. Rev. 111, 127-28 (1972) noting con-
troversial nature of cross-examination of expert witnesses).
Buttrey has, moreover, apparently decided not even to
attempt to make the three showings required under 33°C.F.
R. §320.4(b)(4) (1981).2 Procedural improvements in the
nature of trial-type safeguards could do nothing to remedy
so fundamental a flaw in the prima facie case. See Weinber-
ger v. Hynson, Westcott & Dunning, Inc., 412 U.S. 609, 620,
9/ See text slip op. at 545, —F.2d — supra.
A-25
93 S.Ct. 2469, 2478, 37 L.Ed.2d 207 (1973) (agency not re-
quired to “provide a formal hearing where it is apparent at
the threshold that the applicant has not tendered any evi-
dence which on its face meets the statutory standards as
particularized by the regulations”).
Finally, Buttrey has been given an oral hearing with Col.
Ryan, the District Engineer ultimately responsible for de-
ciding not to issue the section 404 permit. Although But-
trey has intimated that because this meeting was informal
and off-the-record it somehow does not “count” in the due
process analysis, the courts have unanimously concluded
that this kind of informal meeting can often be very im-
portant in ensuring that due process is given. The Supreme
Court in Memphis Light, Gas & Water Division v. Craft,
436 U.S. 1, 18, 98 S.Ct. 1554, 1565, 56 L.Ed.2d 30 (1978),
for example, has said that “[t]he opportunity for a meeting
with a responsible employee empowered to resolve the
dispute” could in some instances be enough of a hearing
even without written submissions. See Goss v. Lopez, 419
U.S. 565, 583, 95 S.Ct. 729, 740, 42 L.Ed.2d 725 (1975)
(providing for informal meetings in school discipline cases);
Goldberg v. Kelly, 397 U.S. 254, 269, 90 S.Ct. 1011, 1021,
25 L.Ed.2d 287 (1970) (“Informal procedures will suffice.’’);
Gray Panthers v. Schweiker, 652 F.2d 146, 166, 169 (D.C.
Cir. 1981) (“opportunity for informal oral consultations”
is enough). The present case is clearly not one where the
agency is attempting to hide behind a faceless, bureaucratic
mask to avoid having anyone take direct responsibility for
an unpopular decision. The Corps has fully and directly
justified its action. See 2 K. Davis, supra, §12:12, at 458-59
(2d ed. 1979) (noting the importance of face-to-face meetings
with the agency in maintaining public trust and confidence in
accuracy of agency’s administrative system). We do not,
however, hold that the due process clause requires this kind
A-26
of informal oral hearing in every case. We merely note
that in this case, Buttrey has beer, afforded virtually every
“process” short of a full trial-type hearing.
We hold, in sum, that Buttrey’s property interest, while
important, is not overwhelmingly so; that the Corps’ paper
hearing procedures, with an informal face-to-face meeting,
provided Buttrey with a great deal of procedural due process;
that imposing a requirement of trial-type procedures, with
oral cross-examination of witnesses, would probably not
reduce the chance of error; that trial-type proceedings wouid
in any event be prohibitively expensive and so cumbersome
as to make it virtually impossible for the Corps to carry out
its statutory mandate; and finally, that, after weighing all
of these considerations in the balance, Buttrey was given all
the procedural protections to which he was entitled under
the due process clause of the Constitution. Under the facts
of this case, any greater procedural requirements would
simply not be worth the cost.
Ili, THE DENIAL OF THE PERMIT.
In addition to challenging the procedures used by the
Corps to process the permit application, Buttrey challenges
the determination itself. He contends that it was arbitrary,
capricious, and not in accordance with law in that it was not
based on a consideration of all of the relevant facts. See
Administrative Procedure Act § 10(e), 5 U.S.C. §706
(1976). Under this standard of review, we must “consider
whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of
judgment.” Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136
(1971). We also bear in mind, as the Supreme Court has
emphasized, that “[a]lthough this inquiry into the facts is
A-27
to be searching and careful, the ultimate standard of review
is a narrow one. [A] court is not empowered to substitute
its judgment for that of the agency.” /d.
Buttrey contends that the Corps in fact ignored the follow-
ing information: (1) evidence that water quality standards of
the State of Louisiana would not be violated; (2) evidence
that the proposed project would enhance the aesthetics of
the area and improve recreational opportunities; (3) evidence
that the project would reduce the chances of flooding and
that it had been endorsed by the State of Louisiana as an
approved drainage project; (4) evidence that by eliminating
mosquito breeding areas, the proposed project would de-
crease health problems in the area; and (5) evidence that the
project would provide economic benefits to the area of
approximately $3 million during construction and would
place the property on the tax rolls. Appellant’s Initial Brief
at 14-17. For all of these contentions, Buttrey relies primari-
ly on the deposition testimony of Col. Ryan and Donald
Conlon (the Chief of the Regulatory Functions Branch),
the taking of which the district court had authorized for
purposes of determining the Corps’ jurisdiction.
Although the depositions were taken only for that
limited purpose, Buttrey maintains that some of the respons-
es prove that the Corps acted arbitrarily and capriciously
in making its decision. The propriety of thus going outside
the administrative record has been discussed in Camp y. Pitts,
411 U.S. 138, 93 S.Ct. 1241, 36 L.Ed.2d 106 (1973). There,
the Supreme Court stated that the courts were forbidden
from undertaking a de novo inquiry on appeal from an
agency decision that had already produced a reviewable
record. 411 U.S. at 143, 93 S.Ct. at 1244. The Court added:
_ The validity of the [agency’s] action must,
A-28
therefore, stand or fall on the propriety of
that finding, judged, of course, by the ap-
propriate standard of review. If that finding
is not sustainable on the administrative record
made, then the [agency’s] decision must be
vacated and the matter remanded to [it] for
further consideration.
Id. As in Pitts, the decision here was accompanied by a con-
temporaneous explanation, We therefore look only to the
administrative record in order to determine if the Corps’
decision was arbitrary, capricious, or not in accordance with
law.
The Environmental Assessment accompanying the Corps’
findings of fact made the following points:
a. Biological. This proposed action will result
in the permanent destruction of approximate-
ly 40 acres of tupelo gum swamp resulting in
loss or wetland functions considered valuable
to the public interest. There will be an in-
crease in turbidity of the water at and down-
stream of the proposed site during the con-
struction activity.
The cumulative effects of this proposed
activity will seriously impact the remain-
der of Gum Bayou and possibly the West
Pearl River.
Data submitted [are] insufficient to de-
termine what impact the project will have
on potential downstream flooding.
A-29
b. Socioeconomic, The impact should be
minimal, however social and/or economic
changes could occur over a long period of
time.
c. Aesthetics, The proposed activity wil!
destroy the natural features of the existing
tupelo gum swamp.
d, Land Use, The proposed activity would
change the land use of the existing gum
swamp. However, the development of residen-
tial lots would be consistent with the land use
of the adjacent subdivision.
e. Air Pollution. As a result of the proposed
activity changes in air quality could occur
due to increased usage of the area.
f. Noise, Noise levels would increase in the
area during the construction process. Average
noise levels would increase gradually in the
area following the completion of the propos-
ed activity due to an increase in residences
and an increase in traffic.
The assessment also asserted that “[a] pproximately 40 acres
of substrate [would] be removed or filled, destroying the
organisms inhabiting and frequenting this area.” The “Evalu-
ation of the Effects of the Discharge of Dredged or Fill
Material into Waters of the U.S, Using the Section 404(b)
Guidelines,” which also accompanied the Corps’ findings
of fact, then enumerated the costs and benefits that the
Corps weighed before determining that the permit applica-
tion should be denied,
A-30
The Corps’ decision must, in the words of the Su-
preme Court, “stand or fall,” 411 U.S, at 143, 93 S.Ct. at
1244, on the issue of whether it acted arbitrarily and ca-
priciously in finding that when the total adverse effects of
the proposal are weighed against the benefit to the public,
the public interest would best be served by denial of the
requested permit. A careful review of the record does not
indicate that the Corps failed to consider all the facts. Com-
ments favorable to the proposal were included in the record
and were individually acknowledged by the Corps in its
findings. Nonetheless, the Corps, after considering all the
facts, found that the costs of the project outweighed its
potential benefits and that the public interest would best
be served by denying the permit. We do not consider this
——— arbitrary, capricious or not in accordance with
law.
IV, THE CORPS’ WETLANDS DETERMINATION,
Buttrey also challenges how the Corps determined
that “wetlands” were involved and the failure of the district
10/ In addition to contending that the Corps failed to consider all
relevant factors, Buttrey contends that the district court failed in its
duty to review the agency action to ascertain that the relevant factors
had been considered, We find no support for this assertion, The district
court expressly concluded that the public interest was neither ignored
nor dishonored, despite the fact that Buttrey made much of the Corps’
failure to articulate meaningfully those public inierests which, by
statute and regulation, it must consider in the permit process, The
district court accompanied this conclusion with a quotation from
Ethyl Corp. v. EPA, 641 F.2d 1 (D.C.Cir.), cert, denied, 426 U.S, 941,
96 S.Ct, 2663, 49 L.Ed.2d 394 (1976), to the effect that the court
must determine whether the agency decision was rational and based on
consideration of the relevant factors,
A-31
court to engage in its own substantial inquiry. The Corps
found that Buttrey’s proposal would destroy wetlands and
therefore lessen the water quality associated with a fresh-
water swamp and stream. Although Buttrey concedes that
his bayou is a wetland, he insists that the Corps never deter-
mined the extent of the wetlands involved or what, if any,
impact the proposed project would have on “wetlands.”
The Corps’ Environmental Assessment, however, states
that the proposed action would result in the destruction of
approximately 40 acres of tupelo gum swarnp resulting in
loss of wetland functions considered valuable to the public
interest. The essence of Buttrey’s complaint is that the Corps
itself conducted no tests in determining wetlands jurisdiction
and instead relied on information supplied by other indi-
viduals and agencies, Buttrey has failed to show, however,
that anything more was required, He does not deny that the
Corps’ finding of wetland status is correct. Reports from the
Fish & Wildlife Service, the Environmental Protection Agen-
cy and the National Marine Fisheries Service all described the
area as a wetland. There is, therefore, sufficient basis for us
to uphold the Corps’ “wetlands” finding under the “arbitrary
and capricious” standard of review.
Buttrey also urges that, because the determination
of wetlands status goes to the Corps’ jurisdiction, the district
court erred in refusing to engage in its own substantial in-
quiry into the extent of the wetlands and the environmental
impact of the project. Again we disagree, Buttrey does
not argue that the Corps’ regulations improperly define
wetlands. To determine, then, that the Corps had acted
within the scope of its authority, the district court needed
only to find that the Corps “could have reasonably believed”
that the factual predicate necessary to its assertion of au-
thority existed. Citizens to Preserve Overton Park, Inc. y.
Volpe, 401 U.S. 402, 416,91 S.Ct. 814, 823, 28 L.Ed.2d
A-32
136 (1971). At that point, the factual findings that form
the basis of the Corps’ decision become reviewable, as in-
dicated above, under the “arbitrary and capricious” standard
of review. We conclude that the Corps’ decision is neither
arbitrary nor capricious,
AFFIRMED.
A-33
APPENDICE B
John BUTTREY and John Buttrey Developments, Inc.,
Plaintiffs-Appellants,
v.
UNITED STATES of America, et al.,
Defendants- Appellees.
No, 81-3649
United States Court of Appeals,
Fifth Circuit.
Nov. 8, 1982.
Appeal from the United States District Court for the
Eastern District of Louisiana.
Before CLARK, Chief Judge, POLITZ and RANDALL,
Circuit Judges.
RANDALL, Circuit Judge:
Plaintiffs-Appellants John Buttrey and John Buttrey
Developments, Inc., are developers of a subdivision in Slidell,
Louisiana, known as Magnolia Forest. On May 5, 1980,
the United States Army Corps of Engineers issued a cease
and desist order advising Buttrey that his placement of a
fill in a wetland area was regulated by the Corps and that
initiating such work without a permit violated section 404
A-34
of the Clean Water Act, 33 U.S.C. §1344 (Supp. IV 1980),1/
On November 21, 1980, the Corps issued another cease and
desist order advising Buttrey that his construction of a levee
and dredging in a wetland area adjacent to the Morgan River
were similarly regulated by the Corps and that initiating
such work without a permit violated section 10 of the
Rivers and Harbors Act, 33 U.S.C. §403 (1976), and sec-
tion 404 of the Clean Water Act.
In response to these cease and desist orders, and to alleged
Corps’ surveillance, unannounced inspections and presence,
Buttrey filed a complaint for declaratory and injunctive
relief on January 21, 1981. Count I of the complaint alleged
that “Congress’ grant of jurisdiction to the United States
Army Corps of Engineers, over the private property and
private activities of United States citizens is in violation of
the United States Constitution” and that “the United States
Army’s entry onto plaintiffs’ property and surveillance of
plaintiffs activities, under the circumstances described
herein, violate plaintiffs’ constitutional rights.” Counts II
and III related to the merits of the specific cease and desist
orders, count IV challenged the legality of the Corps’ in-
spection of Buttrey’s property and surveillance of his activi-
ties, and count V alleged unlawful refusal by the Corps to
make its files relating to Buttrey available to him.
On August 14, 1981, Buttrey filed a motion for summary
judgment on the issue of the Corps’ lack of jurisdiction under
section 404 and the illegality of the cease and desist orders
1/ = Section 404, 33 U.S.C, §1344, provides, in pertinent part:
The Secretary may issue permits, after notice and
opportunity for public hearings for the discharge of
dredged or fill material into the navigable waters at
specified disposal sites.
A-35
issued. The Corps, on August 20, 1981, filed a motion for
summary judgment on count I and a motion to dismiss
counts II through V. Following an oral hearing on these
cross-motions, the district court granted the Corps’ motion
for summary judgment on count 1,2 denied the Corps’
2/ In granting the Corps’ motion, the district court stated:
[P]erhaps one of the first functions that the United
States Government undertook in even its very in-
fancy was the improvement of navigable waterways,
followed by the expansion of flood control. This has,
historically a civil function, been assigned to the
United States Corps of Engineers by the Congress.
Indeed there exists within the United States Army
Corps of Engineers a civil functions division. And if
the Court’s memory is correct, the appropriations
provided by the Congress to the Corps of Engineers
for these functions are characterized as appropria-
tions, Army Corps of Engineer civil functions.
The Court believes that the exercise of the power
of the Congress to control floods and provide flood
control works emanates from the commerce clause
of the Constitution, the very same clause which
finds, and upon which is founded the Government’s
authority in this instance, to attempt to regulate and
deal with navigable waters and adjacent wetlands.
Therefore, the Court can perceive no difference in-
sofar as the source of the power is concerned between
such things «s flood works, which have historically
been performed by the Corps of Engineers under the
commerce clause, and these functions which have
been assigned by the Congress to the Corps of En-
gineers pursuant to power granted it under the
commerce clause, Therefore, the Court finds no im-
propriety in this particular aspect of the civil arm of
a military agency, the Corps of Engineers engaging in
a civil function. And whether that civil function
would be the exercise of flood control functions
under the commerce clause, whether it’s in the
exercise of Section 10 permitting power under the
A-36
motions to dismiss counts II through IV and dismissed
count V as moot.3
On October 13, 1981, the district court, pursuant to Fed.
R.Civ.P. 54(b), ordered that the clerk of the court enter a
final judgment upon the order dismissing count I of the
complaint, certifying that there was no just cause for delay.
Buttrey appeals that judgment.4 The single issue on appeal is
the constitutionality of Congress’ delegation of the authority
embodied in section 404 of the Clean Water Act to the Corps
of Engineers, a part of the United States Army.
Section 404 of the Clean Water Act authorizes the Secre-
tary of the Army, through the Chief of Engineers, to regulate
the discharge of dredged or fill material into the nation’s
navigable waters. See note | supra, Buttrey contends that
2/ Continued
River & Harbor Act, or Section 403 and 404 authori-
ty, or either or both under the Federal Water Pollu-
tion Control Act and Clean Water Act, the Court
sees no essential difference.
This is not the kind of thing which would offend
the historically dominant and constitutionally requir-
ed separation of military and civil power, and the
supremacy of the civil power over the military
power; and, accordingly, the motion for summary
judgment by the plaintiff is denied. The motion for
summary judgment on this count by the defend-
ant is granted.
3/ The Corps produced the requested documents after the filing of
the complaint.
A! This case was consolidated on appeal with Buttrey v. United
States, No, 81-3234, slip op. p. ___, __ F.2d ____ (5th Cir. 1982).
A-37
section 404 of the Clean Water Act unconstitutionally per-
mits the military to assert authority and control over civil-
ians. He contests neither Congress’ power to pass legislation
under the commerce clause aimed at curbing the nation’s
pollution problems, nor the delegation of authority to the
Corps under section 10 of the Rivers and Harbors Act, 33
U.S.C. §403 (1976).5 He challenges only the fact that sec-
5/ Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §
405 (1976), 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 build or commence the
building of any wharf, pier, dolphin, boom, weir,
breakwater, bulkhead, jetty, or other structures in
any port, roadstead, haven, harbor, canal, navigable
river, or other water of the United States, outside
established harbor lines, or where no harbor lines
have been established, except on plans recommended
by the Chief of Engineers and authorized by the
Secretary of the Army; and 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, roadstead, haven, harbor, canal, lake,
harbor of refuge, or inclosure 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 autho-
rized by the Secretary of the Army prior to beginning
the same.
While the Clean Water Act delegated permit authority with respect
to other discharges of pollutants into the Nation’s navigable waters to
the EPA, section 404 of the Clean Water Act retained permit authority
with respect to dredged or fill material in the Corps, extending the
Corps’ jurisdiction with respect to such operations as far as possible.
See S.Rep.No. 95-370, 95th Cong., 1st Sess. 75, reprinted in 1977
U. 8. Code Cong. & Ad. News 4326, 4400.
A-38
tion 404 delegates jurisdiction to “a part of the military,”
as a regulatory agency.
Buttrey argues that Congress’ total power with regard to
the military can be found in article I, section 8, of the United
States Constitution. Nowhere, he argues, is Congress given
the power to use the Army to enforce compliance with laws
or regulations not essential or necessary to the purpose of
an Army. In addition, he argues that such legislation is con-
trary to what Justice Earl Warren once referred to as “‘the
American tradition of the separation of the military establish-
ment from, and its subordination to, civil authority.”” Warren,
The Bill of Rights and the Military, 37 N.Y.U.L.Rev. 181,
183 (1962).
The provisions of article I, section 8, of the Constitu-
tion give Congress the power “to provide for the common
defense, to declare war, to make rules for the Government
and regulation of the land and naval forces, and to raise and
support armies.” See Warren, supra, at 185. Buttrey cites
several cases limiting the authority which Congress can ex-
tend to the military under these ‘“‘war power” provisions of
the Constitution.© The authority of the Corps to regulate
the discharge of dredged or fill material into the nation’s
navigable waters, however, is founded not in these war power
6) See O'Callahan v. Parker, 395 U.S, 258, 89 S.Ct. 1683, 23 L.Ed.
2d 291 (1969); McElroy v. United States ex rel. Guagliardo, 361 U.S.
281, 80 S.Ct. 305, 4 L.Ed.2d 282 (1969); Kinsella v. United States
ex rel, Singleton, 361 U.S, 234, 80 S.Ct. 297, 4 L.Ed.2d 268 (1960);
Reid v, Covert, 354 U.S, 1, 77 S.Ct, 1222, 1 L.Ed.2d 1148 (1957);
United States ex rel. Toth v. Quarles, 350 U.S. 11, 76 S.Ct. 1, 100
L.Ed. 8 (1955); Ex Parte Milligan, 71 U.S, (4 Wall) 2, 18 L.Ed. 281
(1866).
Ar39
provisions, but in the commerce clause.’ The necessary
and proper clause, U.S.Const. art. I, §8, cl. 18, “authorizes
Congress ‘to exercise its best judgment in the selection of
measures, to carry into execution the constitutional powers
of the government,’ . . . and ‘avail itself of experience, to
exercise its reason, and to accommodate its legislation to
circumstances,’ ” Afkins v, United States, 556 F.2d 1028,
1061 (Ct.Cl. 1977) (quoting McCulloch v. Maryland, 17
U.S. (4 Wheat.) 316, 415-20, 4 L.Ed. 579 (1819)). Buttrey
has conceded for purposes of this appeal that the end of this
legislation—“to restore and maintain the chemical, physical,
and biological integrity of the Nation’s waters” —is legiti-
mate. 33 U.S.C. §1251(a) (1976). He has also conceded the
appropriateness of the means, except to the extent that it
employs the Corps of Engineers in the administration of the
program. Recognizing the Corps’ expertise and existing ad-
ministrative machinery, Congress chose administration by
the Corps as the means to achieve its legislative end.8 The
end being legitimate and the means being plainly adapted to
that end, we are left only with the question whether the
administration of the permit program by the Corps comports
with the letter and spirit of the Constitution.
1) See, e. g., Leslie Salt Co. v. Froehike, 403 F.Supp. 1292, 1296
(N.D.Cal. 1974), r ersed and modified on other grounds, 578 F.2d
742 (9th Cir. 1978) (“[T]he Congress, enacting the [Clean Water
Act], was exercising its powers under the commerce clause. . . .”).
8/ In presenting the conference committee report to the Senate,
Senator Muskie noted:
The Conferees were uniquely aware of the process
by which dredge and fill permits [under section 10
of the Rivers and Harbors Act of 1899] are presently
handled and did not wish to create a burdensome
bureaucracy in light of the fact that a system to issue
permits already existed.
118 Cong. Record 33,699 (1972).
A-40
Two facts distinguish this case from those relied on
by Buttrey to argue that Corps jurisdiction is unconstitution-
al. The first is that the constitutional authority for this legis-
lation is the commerce clause, not the war power clauses; the
second is that administration by the Corps does not in-
fringe upon any other provisions of the Constitution. Because
we find that the delegation of authority attacked here has
a source in the Constitution independent of the war powers
clauses and does not infringe upon any constitutional in-
terests, we conclude that it is constitutional.
Most of the cases Buttrey cites address the military’s
court-martial jurisdiction. In United States ex rel. Toth y.
Quarles, 350 U.S. 11, 76 S.Ct. 1, 100 L.Ed. 8 (1955), for
example, the government argued that a 1950 Act of Congress
allowing the trial of ex-servicemen (for certain offenses
committed while in the service) by courts-martial was a valid
exercise of the power of Congress to make rules for the
government and regulation of the land and naval forces, as
supplemented by the necessary and proper clause. The
Supreme Court, however, held that the power granted
Congress to make rules to regulate the land and naval forces
restricts court-martial jurisdiction to persons who are actually
members or part of the armed forces. Jd. at 15, 76 S.Ct. at
4. The Court stated:
There is a compelling reason for construing
the clause this way: any expansion of court-
martial jurisdiction like that in the 1950
Act necessarily encroaches on the juris-
diction of federal courts set up under Article
III of the Constitution where persons on trial
are surrounded with more constitutional
safeguards than in military tribunals.
A41
Id. In Reid v, Covert, 354 U.S. 1, 77 S.Ct. 1222, 1 L.Ed.2d
1148 (1957), the Supreme Court similarly held that the
wives of servicemen overseas could not be tried by mili-
tary authorities. The Court held that the power granted in
article, I, §8, cl. 14 of the Constitution does not extend to
civilians. Here, again, the Court stressed the encroachment on
other provisions of the Constitution:
Every extension of military jurisdiction is
an encroachment on the jurisdiction of the
civil courts, and, more important, acts as a
deprivation of the right to jury trial and of
other treasured constitutional protections.
Having run up against the steadfast bulwark
of the Bill of Rights, the Necessary and Prop-
er Clause cannot extend the scope of Clause
14.
Id. at 21, 77 S.Ct. at 1233. The two considerations referred
to above—the constitutional source of the delegation and
its infringement on constitutional protections—distinguish
these cases from the one before us.
Another case Buttrey heavily relies upon, Laird v. Tatum,
408 U.S. 1, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972), is also
distinguishable. There, the respondents had sought declara-
tory and injunctive relief on their claim that their rights
were being invaded by the Department of the Army’s alleged
surveillance of lawful and peaceful civilian political activity.
The Supreme Court held that there was no justiciable con-
troversy where the first amendment chilling effect was al-
legedly caused not by any specific action of the Army
against respondents, but only by the existence and operation
of the intelligence gathering and distributing system, which
A-42
was confined to the Army and related civilian investigative
agencies. While recognizing that Laird was dismissed for
lack of a justiciable controversy, Buttrey argues that language
in the majority opinion, and in Justice Douglas’ dissent, is
particularly important. While the majority did refer to the
“traditional and strong resistance of Americans to any mili-
tary intrusion into civilian affairs,” id. at 15, 92 S.Ct. at
2326, nothing in the opinion suggests that the type of ex-
tension of authority involved in this case would come with-
in that tradition. Justice Douglas spoke of the extension of
the military’s war powers to military surveillance over civili-
ans, id. ai 17, 92 S.Ct. at 2327, and the purpose and effect
of the system of surveillance to deter the exercise of rights
of political expression, protest, and dissent, id. at 25, 92
S.Ct at 2331. Again these factors distinguish the case before
us. Buttrey has pointed to no constitutional protections
infringed upon by the administration of the program by the
Corps. The Corps’ activities do not encroach upon the
jurisdiction of Article III courts, and Buttrey does not
allege that they chill first amendment rights or any other
constitutionally protected interests.
We refuse to ignore the unique nature of the Corps,
described by the district court as the civil arm of a military
agency, and the expertise of the Corps developed in its
performance of civil functions relating to the preservation
and development of the nation’s water resources for over
150 years. The Corps is limited in its authority to that
which Congress provides and remains subject to revocation
of that authority at any time at the will of Congress. Judicial
review is available in the civil courts under the same standard
of review that would apply to any other agency administer-
ing such a program. Civilian control is also effected by 10
U.S.C. §3013, which requires that the Assistant Secretary
of the Army for Civil Works, whose principal duty is super-
A-43
vision of Army functions relating to water resources con-
servation and development, “be appointed from civilian life
by the President, by and with the advice and consent of the
Senate.”
Our holding is of course limited to the particular
facts of this case—the delegation of the dredge and fill
permit authority of section 404 of the Clean Water Act to
the Army Corps of Engineers. In stressing tinat fact, we re-
peat the words of the Supreme Court found at the close of
the majority opinion ini Laird v. Tatum, supra, at 15-16,
92 S.Ct. at 2326-27:
[W]hen presented with claims of judi-
cially cognizable injury resulting from mili-
tary intrusion into the civilian sector, federal
courts are fully empowered to consider claims
of those asserting such injury; there is nothing
in our Nation’s history or in this Court’s
decided cases, including our holding today,
that can properly be seen as giving any in-
dication that actual threatened injury by rea-
son of unlawful activities of the military
would go unnoticed or unremedied.
AFFIRMED.
A-44
APPENDICE C
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN BUTTREY, ET AL
VERSUS
UNITED STATES OF AMERICA, ET AL
CIVIL ACTION
NO. 80-1617
SECTION: “K”
OPINION
This matter came before the Court on cross-motions for
summary judgment. The Court, after hearing oral argument,
requested that the parties submit supplemental memoranda
on the issue of whether an adjudicatcry hearing is required
when, as here, the jurisdiction of the Corps of Engineers
(“the Corps’’) is challenged.
Having considered all arguments of counsel and having
reviewed the voluminous administrative record and memo-
randa filed in this matter, this Court holds that:
1) where the Corps’ regulatory jurisdiction over a
proposed “dredge and fill” project is challenged, an adjudi-
catory hearing is not required for the purpose of determining
the propriety of the jurisdictional claim;
2) the Corps has jurisdiction to require permit issuance
for the project in question;
A-45
3) the procedures employed by the Corps in the process-
ing of plaintiffs’ permit were not unconstitutional;
4) on the basis of the administrative record, the permit
was properly denied; and
5) plaintiff's claim for damages, allegedly due to either
an unconstitutional taking of property without compensation
or, alternatively, for the delay plaintiff has incurred as a
result of the Corps’ permitting process, is denied.
FACTS
In November, 1978, plaintiff John Buttrey applied to the
Mobile, Alabama, district office of the U. S. Army Corps of
Engineers for a permit to channelize a portion of an area
known as Gum Bayou. This bayou, located in the vicinity
of Slidell, Louisiana, is a tributary of the West Pearl River.
The purpose of the proposed project was to improve drain-
age for the Magnolia Forest subdivision, an area developed
by John Buttrey Developments, Inc. This corporate entity
is also a named plaintiff. The channelized area was to mea-
sure 2,600 feet in length, 7 to 10 feet in depth, and would
vary in width from 100 to 300 feet.
Buttrey’s permit application was denied on April 2, 1980.
This denial came after the project had been subject to the
required public notice, a public comment period, and on-
site inspections by Corps officials and representatives of
other state and federal agencies. Buttrey had requested
and received both an extension of time from the Corps
within which to file a comprehensive memorandum of
fact and law (including supporting expert reports), as well
as a conference with the Corps District Engineer, Colonel
Ryan. Buttrey has now appealed the permit denial to this
A-46
Court, asking declaratory and injunctive relief, as well as
damages.
THE STANDARD OF REVIEW
The Court has utilized the “arbitrary and capricious”
standard in its review of the permit denial which is the
subject of this action. In applying this standard, the Court
follows the substantial body of case law mandating its use.
See, e. g., Citizens to Preserve Overton Park Inc. v. Volpe,
401 U.S. 402, 414 (1971); DiVosta Rentals Inc. v. Lee,
488 F.2d 674, 679 (Sth Cir. 1973). The “substantial evi-
dence” standard of review urged by plaintiff arises in con-
junction with a rule-making provision of the Administrative
Procedure Act, or when administrative action arises from a
statutorily-mandated, on-the-record public adjudicatory hear-
ing. 5 U.S.C. §551, et seq. Neither of these two settings
pertain to a permit evaluation conducted pursuant to the
Federal Water Pollution Control Act (FWPCA), 33 U.S.C.
§1331 et seg. See, e. g., Taylor v. District Engineer, U. S.
Army Corps, etc., 567 F.2d 1332, 1335 (Sth Cir. 1978).
The plaintiffs also contend that this Court’s review of the
Corps’ proceedings should not be limited to the administra-
tive record compiled by the Corps. While this Court allowed
plaintiffs to take discovery depositions and has also reviewed
those depositions in conjunction with the pending motions,
there is strong support for the defendants’ claim that any
de novo judicial review is inappropriate. See, e. g., Volpe,
supra at 415; Camp y. Pitts, 411 U.S. 138, 142 (1973);
F-PC. v. Transcontinental Gas Pipeline, Inc., 423 U.S. 326,
331 (1976); and DiVosta, supra at 679. As stated in Joseph
G. Moretti, Inc. v. Hoffman, 526 F.2d 1311 (Sth Cir. 1976):
We are equally unimpressed with Moretti,
A-47
Inc.’s argument that his discovery was curtail-
ed. In Gables by the Sea, Inc. v. Lee, §.D.
Fla. 1973, 365 F.Supp. 826, aff'd per curiam,
5 Cir. 1974, 498 F.2d 1340, the plaintiff
sought to conduct extensive discovery pro-
ceedings to show that the Corps improper-
ly denied his application for a dredge and fill
permit. The discovery was denied on the
basis that the action was a challenge, pursuant
to the Administrative Procedure Act, to a
final agency decision which must be reviewed
only on the administrative record. “Informa-
tion extraneous to the record should not be
considered in the review procedure. If the
agency action is found to be improper, the
matter should be remanded to the agency; it
would be improper to conduct de novo pro-
ceedings in the formof a trial by the district
court to consider extra-record information.”
365 F. Supp. at 830.
Nor need we tarry long to consider Moretti,
Inc.’s lack of substantial evidence contention.
“The appropriate standard for review was...
whether the . . . adjudication was ‘arbitrary,
capricious, an abuse of discretion, or other-
wise not in accordance with law,’ as specified
in 5 U.S.C. §706(2)(A). In applying that
standard, the focal point for judicial review
should be the administrative record already
in existence, not some new record made
initially in the reviewing court.” Camp y.
Pitts, 1973, 411 U.S. 138 at 142, 93 S.Ct.
1241 at 1244, 36 L.Ed.2d 106. Moretti,
supra at 1312.
A-48
In accordance with the above reasoning, this Court has con-
fined its review of this matter to the administrative record.
JURISDICTION
In addressing plaintiffs’ attack on the Corps’ jurisdiction,
it is necessary to examine the meaning of the term “navigable
waters” as it appears in 33 U.S.C. §1344(a). It is this statute
which creates the Corps’ jurisdiction over the regulation of
dredge and fill operations. The case law and legislative
history indicate that this language is to be given broad
interpretation. As stated in the Senate Conference Report to
the FWPCA 1972 Amendments:
The conferees fully intend that the term
navigable waters be given the broadest possi-
ble constitutional interpretation unencumber-
ed by agency determinations which have been
made or may be made for administrative
purposes. Conference Report, S. Rep. No.
236, 92d Cong. 2d Sess. 114, reprinted in
1972 U.S. Code Cong. and Admin. News,
p. 3822.
The Corps regulation which broadly defines “navigable
waters” to include wetland areas (33 C F.R. §323.2(a)(5))
has come under considerable judicial scrutiny. Yet the
consistent result of such scrutiny has been its vindication.
See, e. g., Leslie Salt Co. v. Froehike, 578 F.2d 742, 755
(9th Cir. 1978); U. S. v. Byrd, 609 F.2d 1204 (7th Cir.
1979); U.S. v. Holland, 373 F. Supp. 665, 674-676 (M. D.
Fla. 1974).
A-49
DUE PROCESS AND THE NEED FOR AN
ADJUDICATORY HEARING
As alluded to above, this Court requested that the parties
present supplemental briefs on the issue of whether an ad-
versary hearing is constitutionally required prior to the
Corps’ assertion of jurisdiction over a proposed project.
The plaintiffs originally contended that they were entitled
to such an adversary hearing, based on a due process argu-
ment which this Circuit has previously considered in Taylor,
supra. As the Court stated in 7aylor, referring to the appel-
lants’ contention that they had been deprived of their proper-
ty without due process: “We do not agree with appellants
and feel that the procedures set forth in the regulations of
the Corps easily satisfy the requirements of due process... .
This Court has previously condoned the procedural pro-
tections provided for in these regulations, and has implied
that these regulations satisfy Fifth Amendment due process.”
Taylor, supra at 1338.
Section 404(a) of the FWPCA (33 U.S.C. §1344(a) ) reads ©
as follows: “The Secretary may issue permits, after notice
and opportunity for public hearings, for the discharge of
dredged or fill material. . . .”” The parties look to the legis-
lative history for evidence of the Congressional intent which
motivated the reference to “public hearings”’.
Historically, under the Rivers & Harbors Act of 1899,
the Corps was given jurisdiction over fill permit proceedings.
The Rivers & Harbors Act provided for informal, non-
adversarial public hearings. Defendants cite Conference
Committee language supporting their view that the Congress
intended for that system of permit issuance to continue
A-50
under the FWPCA.
Plaintiffs attempt to invoke §554 and 556 of the Adminis-
trative Procedure Act as authority for their position that a
hearing with the right to cross-examine is required. Close
scrutiny of those statutes reveals that they are simply not
applicable. Section 556 speaks to the requirement of an
adversarial hearing for a Section 553 or 554 proceeding.
Plaintiffs concede that Section 553 is inapplicable. Section
554 speaks to adjudications. Plaintiffs then argue by extra-
polation, based on several liquor-licensing and pollution
permit (§402) cases, that the dredge and fill permit proceed-
ing is an adjudication.
The Corps attacks this position by pointing out that the
§402 pollution permit cases relate to E.P.A. proceedings.
The E.P.A. is a new agency, and as a result, Congress was
able to write upon a “clean slate”.
In addition, the facts of this case negate any inference
that a due process denial occurred. The plaintiffs requested
and were furnished those comments, positive and negative,
which the Corps considered in evaluating the permit appli-
cation. Plaintiffs also received, upon request, an opportunity
to discuss with Colonel Ryan, the Corps District Engineer,
the status of their application. Plaintiffs were also given a
substantial extension of time within which to file a com-
prehensive legal memorandum responsive to the comments
and reports alluded to above.
While this Court has serious reservations as to the proprie-
ty of the Corps, in cases such as this, in effect, determining
its own jurisdiction while at the same time sitting as a finder
of fact with judicial review confined to the “arbitrary and
capricious” standard, this Court feels itself bound by the
A-51
existing jurisprudence which sanctions the same.
WETLAND STATUS
There is ample evidence in the administrative record in-
dicating the wetland nature of the area in question. It is not
an excepted “headwater” area, as plaintiffs would have this
Court decide. This conclusion is based on a review of the
objective “rate of flow” tests conducted by the Corps and
plaintiffs’ own expert. This Court is also convinced that, as
provided in 33 C.F.R. §323.2, n. 3, the Corps may, in its
discretion, use either of the two “rate of flow” measuring
procedures set forth in its regulations. The Corps may also
require a permit of even a “headwater”’ area, should it find
that compelling environmental concerns so require. 33 C.F.
R. §323.2, n. 2. Lastly, plaintiffs virtually concede in their
supplemental opposition memorandum that a finding of
wetlands status could be established by the Corps, should the
jurisdictional hearing which this Court suggested at oral
argument occur.
Leaving this seeming concession aside, the Corps enumerat-
es several convincing factors which prompted its finding
of wetlands status. It cites plaintiffs’ own expert report,
which refers to “soil [that] remains saturated most of the
time”. A soil saturation factor is contained in the Corps
regulations’ definition of wetlands (33 C.F.R. §323.2(c)).
The other agency reports which the Corps considered
(from the Fish & Wildlife Service, the Environmental Pro-
tection Agency, and the National Marine Fisheries Service)
all describe the area as a wetland. Plaintiffs claim that re-
liance on such evidence, all of which is contained in the
administrative report, would constitute “hearsay” and is
therefore unreliable. This contention receives no credence
A-52
under the case law. See, e. g., DiVosta, supra at 680:
An examination of the record reveals that
the objections from other agencies were
put in terms sufficiently explicit to give Di
Vosta an opportunity to try to refute them.
At every turn, Di Vosta was given sufficient
opportunity to communicate with these
agencies in an effort to change their recom-
mendations. In no respect can Di Vosta be
said to have been deprived of its right to due
process of law. As to the apparent hearsay ob-
jection raised in Di Vosta’s brief, we have
been cited to no case which holds that in a
proceeding such as this, the Secretary is to be
held to the rigid formalities of the hearsay
rule.
The Corps is within its procedural rights in relying on
these agency assessments. The Corps’ finding of wetlands
status and its decision not to engage in a formal wetlands
determination is not unreasonable.
EQUAL PROTECTION
The plaintiffs make various unsubstantiated claims that
their right to equal protection was violated. Aside from
several allusions by plaintiffs to a nearby NASA project
which evidently received a Corps permit, this Court fails to
find any evidence that plaintiffs were treated differently
from others similarly situated. Despite the discovery deposi-
tions which plaintiffs undertook, no evidence of discrimin-
atory treatment is apparent.
A-53
THE “PUBLIC INTERESTS”
Plaintiffs make much of the Corps’ failure to meaning-
fully articulate those “public interests” which, by statute
(33 C.F.R. §320.4(a)), they must consider in the permitting
process. Admittedly, some of Colonel Ryan’s and Mr. Con-
lon’s deposition testimony is somewhat unconvincing. How-
ever, despite the emphasis which plaintiffs have placed upon
that testimony, this Court is not convinced that the “public
interest” was ignored or dishonored.
The strong language which appears in Ethyl Corp. y.
EPA regarding agency decisions in areas of scientific ex-
pertise is significant:
The more technical the case, the more in-
tensive must be the court’s effort to under-
stand the evidence, for without an appropri-
ate understanding of the case before it the
court cannot properly perform its appellate
function. But that function must be perform-
ed with conscientious awareness of its limited
nature. The enforced education into the
intricacies of the problem before the agency
is not designed to enable the court to be-
come a superagency that can supplant the
agency’s expert decision-maker. To the
contrary, the court must give due deference
to the agency’s ability to rely on its own
developed expertise. Market Street Railway
v. Railroad Commission, 324 U.S. 548, 559-
561, 65 S.Ct. 770, 776-777, 89 L.Ed. 1171,
1180-1182 (1945). The immersion in the
evidence is designed solely to enable the court
to determine whether the agency decision was
A-54
rational and based on consideration of the
relevant factors. Citizens to Preserve Over-
ton Park v. Volpe, supra, 401 U. S. at 416,
91 S.Ct. at 823, 28 L.Ed.2d at 153; Bowman
Transportation, Inc. v. Arkansas-Best Freight
System Inc., supra, 419 U.S. at 285, 290,
95 S. Ct. at 441, 444, 42 L.Ed.2d at 455,
458. It is settled that we must affirm de-
cisions with which we disagree so long as this
test is met. Bowman Transportation, Inc. v.
Arkansas-Best Freight System, Inc., supra,
419 U.S. at 290, 95 S.Ct. at 444, 42 L.Ed.2d
at 458; United States v. Allegheny-Ludlum
Steel Corp.; supra, 406 U.S. at 749, 92
S.Ct. at 1946, 32 L.Ed.2d at 460.
Judgment shall be entered accordingly. !/
New Orleans, Louisiana, this 31st day of March, 1981.
/s/ George Arceneaux, Jr.
UNITED STATES DISTRICT
JUDGE
1/ Plaintiffs have not responded to defendants’ contention that
the daim presented in Count V of plaintiffs’ complaint is beyond
this Court’s jurisdictional reach. However, in view of this Court’s
opinion, it is unnecessary to reach full consideration of this issue.
A-55
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN BUTTREY, et al
VERSUS
UNITED STATES OF AMERICA, et al
CIVIL ACTION
NO. 80-1617
SECTION “K”
JUDGMENT
This matter was taken under submission after the parties
had filed their respective motions for summary judgment.
Now, therefore, for the written reasons of the Court on
file herein;
IT IS ORDERED, ADJUDGED AND DECREED that
there be judgment in favor of defendants, United States
of America, Clifford L. Alexander, Jr., Major General John
W. Morris, and Colonel Robert H. Ryan, and against plain-
tiffs, John Buttrey and John Buttrey Developments, Inc.,
dismissing said plaintiffs’ suit, each party to bear own costs.
New Orleans, Louisiana, this 6 day of April, 1981.
/s/ George Arceneaux, Jr.
United States District Judge
A-56
APPENDICE D
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
JOHN BUTTREY and JOHN BUTTREY
DEVELOPMENTS, INC.
VERSUS
UNITED STATES OF AMERICA;
CLIFFORD L. ALEXANDERS, JR..,
SECRETARY OF THE ARMY OPERATING
THROUGH THE U.S. ARMY CORPS OF
ENGINEERS: LIEUTENANT GENERAL
JOSEPH K. BRATTON, CHIEF OF
ENGINEERS; and COLONEL ROBERT
H. RYAN, DISTRICT ENGINEER,
U.S. ARMY CORPS OF ENGINEERS
MOBILE DISTRICT
CIVIL ACTION
NO. 81-263
SECTION “K”
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT,
and
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ON COUNT!1, AND MOTION TO DISMISS
COUNTS 2, 3, 4, and §
HEARD ON SEPTEMBER 30, 1981
BEFORE: THE HONORABLE GEORGE ARCENEAUX,
JR. UNITED STATES DISTRICT JUDGE
NEW ORLEANS, LOUISIANA.
A-57
APPEARANCES:
For the plaintiff:
MESSRS. DEUTSCH, KERRIGAN & STILES
Attorneys at Law
4700 One Shell Square
New Orleans, Louisiana 70139
(BY: CHARLES K. REASONOVER
and
HOWARD J. ETTINGER
For the defendants:
NANCY S. BRYSON
Pollution Control Section
Land & Natural Resources Division
Department of Justice
Washington, D. C. 20530
A-58
PROCEEDINGS
THE COURT: Good morning.
MR. REASONOVER: Good morning, your Honor. We
both have cross motions.
THE COURT: You started this, I think, Mr. Reasonover.
You can be first at bat.
MR. REASONOVER: May if please the Court, Charles
Reasonover, representing plaintiffs, Buttrey.
Your Honor, we have a five-count claim, and we filed
motions for summary judgment on four of the counts. I
believe the Government filed on five counts, so we actually
have the entire complaint before the Court today.
THE COURT: I’m particularly interested in your argu-
ment relative to two claims: First of all, the claim that it’s
an unconstitutional delegation of power to designate the
Corps of Engineers a military agency as the administrative
agency in charge of civilian functions; and, secondly, whe-
ther or not you are entitled to test the Corps’ claim of
jurisdiction without first proceeding through the Administra-
tive Procedures Act. I think you have a hint, by virtue of
previous proceedings, what my views may be in connection
with that. But I’m particularly anxious to deal with those
two things, and then, during the course of argument, ! want
the Government to bear in mind the plaintiffs claim that
the sewer plant may have been built in October of 1976,
but the fill on which the sewer plant was built was actually
completed, in place, and in effect made land long before this
time.
A-59
Proceed, sir.
MR. REASONOVER: I will direct my initial argument
to the two points to which the Court has most interest.
Let me eliminate what we are not challenging, and this is
basically what the Government’s briefs cover. We aren't
challenging the constitutionality under the commerce clause.
THE COURT: You’re just challenging the right of the
Government to vest this essentially civilian function in a
military agency, as I appreciate it.
MR. REASONOVER: Yes, sir, and if this same function
were vested in the EPA, we wouldn’t be here with this argu-
ment today.
Let me trace, first, the history of what happened to reach
the point under the Federal Water Control Act that placed
this jurisdiction in the Corps. I guess the Rivers & Harbors
Act of 1890 placed jurisdiction in the Corps over navigable
waters, so everybody knows if you want to build a dam
across the river you have to go to the Corps. The Supreme
Court has passed on this many times; and we do not question
the jurisdiction of the Corps to Section 10 of the Rivers &
Harbors Act. What happened in the debates in Congress,
somewhere along the way Senator Muskie said let the Corps
of Engineers handle wetlands because they handle navigation,
and one is under 403 and the other is under 404, so the
jurisdiction is the same. And what has happened is that the
Corps’ jurisdiction has gone from the Mississippi River into
Mr. Buttrey’s back yard. The Corps is making unauthorized
inspections, going on property - -
THE COURT: The Government says they didn’t do this.
A-60
MR. REASONOVER: Well, sir, we filed a list of inspec-
tions that they made that we did not have notice of.
THE COURT: Well, weren’t these facilities visually
viewable from the roadways and streets and so forth?
MR. REASONOVER: Judge, I don’t know, but I’ve told
the Corps, and it’s in writing, that anytime they want to go
out there, call me or Mr. Buttrey, and we’ll go with them.
THE COURT: I think that’s fine. Answer my question.
Couldn’t these facilities be seen from the streets and the
subdivision?
MR. REASONOVER: If it could be seen from the streets,
we would not have a case.
THE COURT: I guess that answers my question, Mr.
Reasonover.
MR. REASONOVER: Yes, sir. Yes, sir. I recognize there
is an open fields exception to the legal search and seizure,
and that would fall under that. To the extent they go on our
property, or any other private property, as General Heiberg
has directed in his instructions, you obtain the consent of
the property owner. But, your Honor, that brings us to the
point of what the Corps’ activities, how distant they are
from military functions. They’re looking - - in some cases
we're talking about a ditch that is two feet deep, two
feet wide across the back of somebody’s lot. This was not
visual from the street. They issued a cease and desist order
on that. But what happened, as far as the Corps is concern-
ed, is the power now of the Clean Water Act, the Federal
Water Pollution Control Act involving wetlands, and, your
A-61
Honor, related to another issue, the Corps, under a graduated
basis, has extended its jurisdiction in four stages from navi-
gable waters to traditional wetlands. And if I could start - -
and I won’t trace the history of the constitutional conven-
tion. We did cite that in our brief. I might add that the best
language on this is the Tatum case, which involved the pro-
test in 1972. It went up through the courts. The district
court, D. C., found a violation of the Supreme Court rule
that there was no justiciable controversy. In that case mili-
tary intelligence was engaging in surveillance of civilians,
maintaining files on them. Justice Burger, in a majority
opinion, said we aren’t condoning this, we aren’t passing,
we just find there is no justiciable controversy. The dissent
discussed it at length. There is just absolutely no basis for
the military to engage in jurisdiction over civilians with
respect to entirely civilian matters. This has been consistent-
ly applied in every case that they have found. If you don’t
THE COURT: But you have none involving the Corps
of Engineers. You have indicated cases involving civil dis-
turbances and matters of this kind, but nothing involving
civil functions performed by, say, an agency such as the
Corps of Engineers.
MR. REASONOVER: That’s right, your Honor.
THE COURT: Are you saying that a military agency
can never perform a civil as opposed to a military function?
MR. REASONOVER: Your Honor, if it cannot fall under
the constitutional war powers, that’s correct. Everything
that we’ve traced, every case that’s ever come up, it had to
fall under some war power. Government cites only two cases
that involve this question. One is the war Renegotiation Act,
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what the Government pays for supplies, army supplies. We
don’t question that decision. It’s a good decision. What
the Government pays for military goods falls within the war
powers. Another case was certain type of activity off of an
army base, houses one mile from the base. The Government
said they could bar it. The court said that’s right, it involved
the health of the soldiers. That’s about as far as the courts
have ever gone in extending military power to civilians.
THE COURT: Let me ask you this. The power of the
Congress to provide flood control flows from the commerce
clause of the Constitution. The Corps of Engineers histori-
cally has been charged with civil functions in connection
with revetment work on the Mississippi River, construction
of levees, dredging of the river to enhance capacities to move
flood waters. Do you feel that this would be unconstitution-
al also?
MR. REASONOVER: On the Mississippi River, no, sir.
THE COURT: What is the difference? If it’s a civilian
function, isn’t it a civilian function?
MR. REASONOVER: No, your Honor. I believe that
when you get into the transportation, ability to transport
military equipment, depth for vessels, the war effort - -
THE COURT: Can we agree, though, that the Congress
exercises flood control and navigation functions by virtue
of the commerce clause? You’ll concede that that’s not under
the war powers clause, the national defense clause. The
authorizations and appropriations made by the Congress for
flood control, navigation, power generation, and so forth are
pursuant to the commerce clause; are they not?
A-63
MR. REASONOVER: Judge, I don't know. I would say
the Supreme Court cases that involved - - at that point it
was called the Secretary of War - - always talked about
navigation. And some of these Supreme Court cases said if
you go outside of the reasonable bounds of what’s necessary
for navigation, the Secretary of War docs not have jurisdic-
tion.
THE COURT: How about flood control?
MR. REASONOVER: Flood control relates to the course
of navigable waterways, and the courts have passed on that.
THE COURT: The Corps for years has built backwater
levees around Mississippi River communities. Ferriday is a
good example. Would the construction of that backwater
levee to provide flood control also be a strictly military
function, do you think?
MR. REASONOVER: Judge, your hypothet on the Corps’
jurisdiction on backwater levees - - of course, we have levee
districts in Louisiana that build these levees, and except for,
maybe, emergency situations, I don’t know of the Corps
asserting jurisdiction in these areas. I may be wrong.
Judge, 1 cited the cases where the question has been pre-
sented, numerous courts, jurisdiction - -
THE COURT: None involving the civil function of the
Corps of Engineers. Now, let’s get to what I think is a very
critical point of this, also, and that is whether or not you
have to pursue your administrative remedies and exhaust
them before you can contest the Corps’ claim of jurisdiction.
That, as I perceive it, is the basis of one of your claims; is it
not?
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MR. REASONOVER: Our claim is we filed a motion for
declaratory judgment, in addition to injunctory relief,
saying,for example, the sewage treatment plant that we built
in 1976 - - a cease and desist order has been issued. It’s an
immediate problem. Your Honor, I could list the cases, such
as the Avoyelles Parish case, which I know this Court is
familiar with, and Eden Isles, that I participated in, that
started out on the cease and desist, and went right on
through trial.
There is only one case that the Government cites that
comes close, U.S. v. Byrd, and where the Seventh Circuit
said go back and apply for a permit. In that case the question
was where were wetlands, what were “he wetlands, and
the court said: I’m not going to sit here and determine
wetlands. That’s for the administrative procedure.
In that case we have straight legal issues that are for the
Court to determine, cases are uniform on that point. The
jurisdiction of the Corps is for the Court and not for the
Corps. We have five counts before the Court. The refer-
ence to the administrative agencies is a matter of discretion,
and what we submitted to the Court was, if we have these
other points, legal issues, no factual questions before the
Court for determination, we'll concede for purposes of this
argument that in the two situations where the cease and
desist orders have been issued, the Court can assume that
this area was a wetland. In one situation we say we don’t
need a 404 because we aren’t filling in a wetland, and the
other situation is saying - -
THE COURT: Both of which the Corps had the juris-
diction to issue those cease and desist orders.
A-65
MR. REASONOVER: Asa matter of law.
THE COURT: Secondly, insofar as the Corps’ claim
that a levee was improperly constructed - - was it across
Gum Bayou? Was that an instance of the digging of the
pond?
MR. REASONOVER: No, sir. In digging the pond there
was a roadway - -
THE COURT: There is some correspondence in the
record that indicates that Mr. Buttrey wanted to put a
culvert underneath the roadway, and the Corps said there
is nothing really wrong with that. And apparently the Corps
comes back and says, in addition to putting a culvert, he
put a culvert with a flat drain in it, and then on top of that
he put some levees, which indicates it’s actually a drainage
project as opposed to a road going someplace.
MR. REASONOVER: Your Honor, that matter is not
before the Court by way of background.
THE COURT: I think the Government has brought it
up.
MR. REASONOVER: Well, that letter is in the record,
and they put it there, and maybe Ms. Bryson
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