Petition — Bayou Des Familles Development Corp. v. United States Corps of Engineers

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83-734 /0 “ro”

NO. NQY,,3 1983

LoOXK

Aspens ck L. STEVAS,

bs one

In the

Supreme Court of the United States

OCTOBER TERM, 1983

BAYOU DES FAMILLES

DEVELOPMENT CORPORATION,

PETITIONER,

UNITED STATES CORPS OF ENGINEERS,

UNITED STATES DEPARTMENT OF THE

INTERIOR, and UNITED STATES OF AMERICA,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

MOISE S. STEEG, JR.

STEEG & O'CONNOR

1440 Oil & Gas Building

1100 Tulane Avenue

New Orleans, Louisiana 70112

(504) 581-9362

A B Letter Service. Inc., 327 Chartres St., New Orleans, La (504) 581-5555

QUESTIONS PRESENTED

This case, we believe, for the first time squarely

presents the issue whether, if in the exercise of its permit

authority pursuant to the Rivers and Harbors Appropria-

tions Act of 1899, § 10, 33 U.S.C. § 403 (hereinafter RHA),

and the Federal Water Pollution Act, § 404, 33 U.S.C. §

1251, renamed Clean Water Act (hereinafter CWA), the

Corps of Engineers completely destroys the economic

usefulness of private property, a Fifth Amendment viola-

tion of ‘due process’ or ‘just compensation’ occurs.

The specific questions presented in this litigation

FIRST: With respect to the permit action of the

Corps of Engineers:

Petitioner is the owner of real property in Jefferson

Parish, Louisiana, and was proceeding with State and

Municipal regulatory approval to develop it by the erection

of a levee and “‘plugging’’ a man-made canal when (a) the

work was halted by the Corps of Engineers and (b) its ‘after

the fact permit’ was denied. With respect to the jurisdic-

tion and action of the Corps of Engineers the following

questions are presented:

(1) Did the Corps of Engineers have initial jurisdic-

tion over Petitioner’s land when it issued its cease and

desist order? If so,

(2) Does the Fifth Amendment provide injunctive

remedy to a property owner where in the execution of its

permit power under the Rivers and Harbors Act (RHA)

and/or the Clean Water Act (CWA), the Corps of Engineers

renders the property owner’s land valueless, or does such

action constitute a Fifth Amendment taking without just

compensation?

(3) Did the administrative action of the Corps of

Engineers violate the due process provisions of the Fifth

Amendment where (i) the decision was predicated on

regulations which were issued after the application was

filed; (ii) its decision was delayed for approximately four

years after it was in posture to decide; (iii) both the delay

and the decision were influenced by the efforts of the Corps

to accommodate its own decision on peripheral matters, i.e.

the location of a hurricane protection levee and the needs

of the Department of Interior with respect to Jean Lafitte

Historic Park; (iv) the permit denial was inconsistent with

two other decisions by the Corps of Engineers involving

the same issues and comparable land; and (v) is not sup-

ported by the weight of its own holdings applying its own

criteria? Or, if not a violation of due process

(4) Do these factors constitute grounds for judicial

reversal of the decision of the District Engineer on the

ground that it was arbitrary and capricious so that injunc-

tive relief should issue?

(5) Does this action constitute a taking without just

compensation in contravention of the Fifth Amendment?

(6) Did the United States District Court, having

jurisdiction over the property and the parties and the clear

right and jurisdiction to determine whether the alleged

Fifth Amendment due process violations had occurred and

grant injunctive relief, have the pendent jurisdiction to

determine, if it denied injunction, that the actions com-

plained of constituted a Fifth Amendment taking without

just compensation?

SECOND: With respect to the Jean Lafitte Park:

On November 10, 1978, Congress created the Jean

Lafitte Historical Park, delegating its administration to

the Department of Interior and granting the Department

of Interior the right to create a Core Area containing about

8,000 acres (which constituted the Park itself) and a Park

Protection Zone (PPZ) of about 20,000 acres. Approximate-

ly 151 acres of Petitioner’s property was included in the

Core Area, and 1,800 acres in the Park Protection Zone.

(i) The statute provided that the Department of In-

terior ‘‘shall’’ establish guidelines for the PPZ within six (6)

months after enactment of the statute. Since these guide-

lines were not established within the 6-month period, is

Petitioner entitled to injunctive relief on the ground that

the use of the word ‘‘shall’’ was mandatory and, therefore,

the Department of Interior had no further right to issue

guidelines?

(2) However, if it is determined the Department of In-

terior has the right to issue guidelines, despite the

language of the statute, then does the Park Protection

Zone, as described in the statute and as governed by the

guidelines proposed by the Department of Interior, in fact,

constitute an extension of the Core Area; thus, a Fifth

Amendment violation by the taking of property without

due process?!

! When this suit was instituted, Petitioner further complained it

should recover for the Core Area on the grounds that the delay of taking

had deprived Petitioner of its land without compensation. Meanwhile,

the process of condemnation has commenced, appraisal completed, and

offer to acquire submitted, and this issue dismissed without prejudice.

LIST OF INTERESTED PARTIES

Petitioner is Bayou des Familles Development Cor-

poration, a Louisiana corporation, whose shareholders are

Wilson P. Abraham, George Ackel, Sam J. Gattuso, James

E. Hennessey, Charles Kornman, B. H. Miller, Succession

of Julius Rosenblum represented by his son, Paul

Rosenblum, and James Trotter.

TABLE OF CONTENTS

Page

eS. SS ee ts Er i

ue Ce PPUNGEOE. ow. ee ew ee ec das iv

hos. ssw gin dh oieta v ood woe ob tae Vv

ne ka ee caw nese ceebeubene vi

I ere os ow Siw aid ca bon Bw ee CAR me 1

ii rr, ss alee pews) s iawn 9 ae 2

Constitutional and Statutory Provisions Involved ..... 2

ee sede csc Lr sss wel aw ioa'e ub bw eee 3

Basis for Federal Jurisdiction...................... 7

er. ks op Wa ene Wa de wine FOE 7

sis, ila Ca whens «devia vaweh 16

Nee ee ae pw wale ee 18

APPENDIX A—

Jean Lafitte National Historic Park Act,

16 U.S.C. § 230, P.L. 95-625, §§ 901, 902....... A-1

33 C.F.R. §§ 322.4(g), 323.3(a), 323.4-1.......... A-4

eo ee ee A-6

APPENDIX B—

Opinion of the U.S. District Court............ A-10

Judgment of the U.S. Court of Appeals

ee enc c ween A-46

Judgment of the U.S. Court of Appeals for

the Fifth Circuit on Petition For Rehearing... . A-48

Letter from Frederic M. Chatry dated

i es ba ies A-49

Memorandum from Nettles dated

ee iw A-52

Memorandum from James L. Isenogle

I A-54

Opinion of the U.S. District Court, Eastern

District of Louisiana, in Orleans Audubon

Society v. Col. Robert E. Lee ................ A-58

Opinion of the District Counsel for the

Corps of Engineers, Joseph A. Towers ........ A-63

TABLE OF AUTHORITIES

Case: Page

Agins v. City of Tiburon,

I I cies 4 Arddtin Wa Ww Neues he’s e 8

Bradley v. School Board of City of Richmond,

NS gs cd's oid wu ae Mot sales oA 12

Calero-Toledo v. Pearson Yacht Leasing Co.,

I I Gg oc g sa y's ecdhelblei eve abs oe

Cherokee Nation v. Southern Kansas Ry. Co.,

oy ac 0G le cob eS 0 a bt0 oo A @ Ofe 8

Deltona Corp. v. U.S.,

ON A BE eo 8) | eee 9

Jentgen v. U.S.,

657 F.2d 1210 (Ct. Cl. 1981) cert. den.,

0S, Ci ib ais wlle'g ws» veo de les 9

Green v. U.S.,

I oo, cia ak Sine coins sige ow ROWS 12

Kaiser Aetna v. U.S.,

ar a Shes alee wig v ale w O00 0. 9

Manhattan General Equipment Co. v. Commissioner

of Internal Revenue, 297 U.S. 129 (1936)........ 12

Orleans Audubon Society v. Col. Robert E. Lee,

EOS. yes wae bas alee its bb a6 10, 12, 13, 15

Peabody v. U.S.,

ID oS 0's 5's bo ow wir» aN ble wkd 9 9

Penn Central Transportation Co. v. City of New York,

eR Sc Cia 'o..0 0b gycasw'n ba WAL O 8,9

Securities and Exchange Commission v. Chenery Corp.,

I I ol, Se WS aire weak vgtenlo iow o ghee 12

U.S. v. Causby,

I I a, g's GEM ns 0 bm widcp ake dma 9

Constitution, Statutes and Regulations:

United States Constitution, Fifth Amendment........ 2

Rivers and Harbors Act, § 10

pS eae. ee 6, 7, 10, 14

vii

Federal Water Pollution Act, § 404

ee oe 6, 7, 10, 11, 12, 14

Jean Lafitte National Historic Park Act

16 U.S.C. § 230, P.L. 95-625 §§ 901, 902....... 3, 5

33 C.F.R. $8 322.4(g), 323.4-1................ 3, 10, 12

33 C.F.R. §§ 209.260(g)(1), (k) (ii) (2) (1972)

Engineering Regulation 1165-2-302............... 3, 11

The Tucker Act, 28 U.S.C. $ 1401. ....... 0... ccc 6

oot ens sven cata ek kp kis vis aS ORN 7

5 U.S.C. $§ 702, 703, 704 and 706................... 7

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

BAYOU DES FAMILLES

DEVELOPMENT CORPORATION,

Petitioner

Vv.

UNITED STATES CORPS OF ENGINEERS,

UNITED STATES DEPARTMENT OF INTERIOR,

and UNITED STATES OF AMERICA

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Bayou Des Familles Development Corporation,

plaintiff in the District Court and Appellant in the Fifth

Circuit Court of Appeals, prays that a Writ of Certiorari

issue to review the judgment of the United States Court of

Appeal for the Fifth Circuit rendered on June 23, 1983,

rehearing denied on August 8, 1983.

OPINIONS BELOW

The opinion of the District Court is reported under

the caption Bayou Des Familles Development Corporation

v. U.S. Corps of Engineers, et als, was rendered on April 20,

1983, and is reported at 541 Fed. Supp. 1025 (Appendix B,

Item 1).

The United States Court of Appeals for the Fifth

_—

Circuit affirmed the District Court on June 23, 1983. This

opinion is not reported (Appendix B, Item 2).

The Petition for Rehearing was denied on August 8,

1983 (Appendix B, Item 3).

JURISDICTION

The judgment of the U.S. District Court was

rendered on October 23, 1981 and entered October 27,

1981.

The judgment of the Court of Appeals for the Fifth

Circuit was rendered June 23, 1983 and entered August 22,

1983. The Petition for Rehearing was denied on August 8,

1983.

The jurisdiction of this Court is invoked under 28

U.S.C. 1254(F).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

(1) The Fifth Amendment to the United States Con-

stitution provides:

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a present-

ment or indictment of a Grand Jury, except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for

the sane offence to be twice put in jeopardy of life

or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be

deprived of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation.

(2) Jean Lafitte National Historic Park Act, 16

U.S.C. § 230, P.L. 95-625 §§ 901, 902 (Appendix A, Item 1).

(3) 33 C.F.R. §§ 322.4(g), 323.3(a), 323.4-1 (Appendix

A, Item 2).

(4) 33 C.F.R. $§ 209.260(g)(1), (k)(ii(2), Engineering

Regulation 1165-2-302 (1972) (now repealed, published at

37 Federal Register 176, pp 18289-18292, September 9,

1972) (Appendix A, Item 3).

STATEMENT

During 1973 Bayou Des Familles Development Cor-

poration, Petitioner, acquired approximately 2,500 acres of

unimproved land in Jefferson Parish, Louisiana, intending

to develop it for residential and commercial uses. Following

well established procedures and practices, it applied for

and obtained the approval of the appropriate local

authorities to levee the property and install a pumping sta-

tion to provide drainage. In the course of its approval pro-

cedure, the Jefferson Parish authorities called the Peti-

tioner’s attention to a levee line which had been proposed

by the Corps of Engineers for a hurricane protection levee

for this area. Engineering and environmental studies had

been completed, and a public hearing scheduled on the

Corps’ levee. Petitioner then relocated its levee line from

the boundary of its property to adopt the line proposed by

the Corps of Engineers, which required Petitioner to obtain

easements from other property owners since the Corps’

location included property of other owners as well as Peti-

tioner’s.

In the process of obtaining local approval, the Jeffer-

son Parish authorities on August 12, 1973 transmitted the

plans and specifications for the Petitioner's levee and for

the proposed work to the Corps of Engineers, and on Oc-

tober 9, 1973, received this reply from Frederick M.

Chatry, Acting Chief, Planning Division of the Corps (Ap-

pendix B, Item 4):

“5. The Bavou des Familles levee...if built...as

specified in the construction drawings...and if

properly maintained will provide protection

against hurricane produced stages on the order of

once in a hundred years or better....’’

Nevertheless, on October 29, 1973, 60 days after the

parish letter and 20 days after the Corps’ reply thereto, the

then District Engineer, apparently completely unaware of

his department's receipt of the Petitioner’s plans and their

approval by Chatry, wrote Petitioner that: ‘‘Based on the

definition of navigable waterways published in the Federal

Regulations on 9 September 1972, a permit ... may be re-

quired for this construction..."’ and requested copies of the

plans.” After communications between Petitioner and the

Corps, the District Engineer ordered the work to cease on

the ground that Petitioner had to obtain a permit to plug

the man-made canal which dead-ended on its property (the

Kenta Canal), contending that it was a navigable water-

way; he further subsequently determined that the levee

work also required a permit because Petitioner’s land was

below the level of the extended ‘‘plane of the mean high-

tide’’ measured at a gauge at Barataria Bay seven (7) miles

* Examination of Chatry's letter, will show that a copy of this let-

ter with five enclosures including the plans and specifications were sent

to Mr. Decker. This is the same Charles Decker referred to in the

District Engineer's letter as the person to whom Petitioner should reply.

miles away, and was therefore wetlands. The regulations

relied on provided as follows:

‘*...A canal open to navigable waters of the United

States on only one end is itself navigable where it

in fact supports interstate commerce.” (Appendix

A, Item 3)

After cease and desist proceedings were completed,

Petitioner applied for an after the fact permit on April 7,

1975. At this time, the pumping station was finished and

the levee ninety percent completed. The Kenta Canal was

not plugged.® According to the Corps’ records, it was ready

to render a decision on the permit application on December

10, 1975 (Appendix B, Item 5). However, the decision deny-

ing the application was not rendered for about four years,

on September 17, 1979.

The effect of this decision was to render the land ab-

solutely useless for any purpose.

The delay was caused by two unrelated government

matters: (1) The action to create the Hurricane Protection

Levee which had been relied upon by Petitioner in 1973,

had been abruptly halted for fiscal reasons; it was renewed

after the application was filed, and in 1978, the Corps

selected a new levee line different from the 1972 line which

Petitioner followed. (2) Meanwhile, Congress had enacted

the Lafitte Park legislation. The Department of Interior, to

control the area to be included in the PPZ, took an assertive

% Petitioner's plans originally called for plugging Bayou Boeuf, a

small natural body of water. These plans were abandoned and the Corps

so notified, and Bayou Boeuf plays no part in this litigation, although

it is contended that Bayou Boeuf was actually plugged. This is not con-

ceded, but what is established is that Bayou Boeuf on Petitioner's pro-

perty at the most is six inches deep only after flooding rains.

and aggressive part in the permit procedure to be certain

the PPZ boundary and the Hurricane Levee Line would

coincide, and that the permit would be denied.4 Both of

these factors weighed heavily (as the District Court deter-

mined) in the Corp’s decision making process, both with

respect to delay and the ultimate result.

Promptly after the denial of the permit, plaintiff in-

stituted this suit in the United States District Court seek-

ing injunctive relief on the ground that, individually and

collectively, the action of the Corps of Engineers and the

Department of Interior deprived Petitioner of its property

without due process of law in violation of the Fifth Amend-

ment, or in the alternative, constituted a taking without

just compensation in violation of the Fifth Amendment.

The Court below, misconstruing plaintiff's constitutional

arguments as an attack on the RHA and CWA per se,

dismissed the due process claim seeking injunction, and

declined to consider the alternate argument of just compen-

sation on jurisdictional grounds, holding jurisdiction was

vested solely in the Court of Claims under the Tucker Act.

While the permit application was pending, the

Department of Interior prepared a final draft of its

guidelines and submitted these to the Parish of Jefferson,

which refused to act on them. The guidelines, when con-

strued in the light of the statute itself, make the PPZ

* Petitioner has contended that the combined action purported to

increase Lafitte Park from 8,000 acres to 28,000 acres, and in so doing,

prevent proper recovery by Petitioner for the property taken in the Core

Area and the PPZ. Although not in the record and having occurred since

this case was decided by the Fifth Circuit, this position is borne out by

the appraisal by the Department of Interior's appraiser, who relied on

the ‘‘uselessness’’ of Petitioner's acreage in the Core Area as a result of

the Core’s permit denial, and found its use ‘‘recreational only’’ and thus

of minimal value.

nothing other than an extension of the Park. They effec-

tively prevent any viable use of Petitioner's property.

With respect to the action of the Department of In-

terior, Petitioner has contended that the language of the

statute mandated that guidelines be issued within six (6)

months after the effective date of the Lafitte Park Act, or

if not, then to establish a PPZ, the Department of Interior

was required to acquire the property by exercising the

right of eminent domain. Since six (6) months had elapsed

and the guidelines had not become official, injunctive relief

against their future issuance was sought. In the alter-

native, in the event the guidelines could be issued,

Petitoner contended that the statutory definition of the

PPZ, when construed with the final draft of the guidelines

of the Lafitte Park Statute, clearly deprived Petitioner of

any use of its land whatsoever, and therefore was an un-

constitutional taking.

BASIS FOR FEDERAL JURISDICTION

Jurisdiction in the U.S. District Court was asserted

under 28 U.S.C. § 1331, and 5 U.S.C. §§ 702, 703, 704 and

706.

ARGUMENT

It appears that thus far Petitioner has been unable

effectively to present its constitutional arguments. Peti-

tioner does not contend, as the Court below perceived, that

the RHA and CWA are per se unconstitutional statutes. To

the contrary, Petitioner contends that in the administra-

tion of the permit authority granted the Corps of Engineers

by these statutes, the Corps exceeded its authority in that

its actions were, in effect, confiscatory and, accordingly,

constituted a violation of due process for which injunction

is the proper remedy, or constituted a taking of private pro-

perty for public use without just compensation, and Peti-

tioner is therefore entitled to recover ‘‘just compensation”’

for its property.

Nor does Petitioner contend that Congress does not

have the power to create the Jean Lafitte Park and that it

cannot ‘‘take the Core Area’’. However, Petitioner does con-

tend that the Department of Interior does not have the right

to create a Park Protection Zone with such severe restraints

on its use that it is nothing more than an extension of the

Park itself; this action destroys the entire value of Peti-

tioner’s properties, and thus affords Petitioner the relief

sought.°

These contentions are based upon the language of this

court in Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S.

663, 668 n. 5 (1974) where this time-honored language was

quoted:

“There cannot exist under the American Flag any

governmental authority untrammeled by the re-

quirements of due process of law as guaranteed by

the Constitution of the United States.”’

In 1980, in Agins v. City of Tiburon, 447 U.S. 255

(1986), it was held that a government regulation effected a

taking if it ‘denies an owner economically viable use of his

land " See also Cherokee Nation v. Southern Kansas Ry. Co.,

135 U.S. 641 (1890); Penn Central Transportation Co. v.

5° The Federal defendants did not contest this contention and the

Cneenan ene ae ie Sy ee ee

was completely obliterated by the actions complained of, and the

below so held.

City of New York, 438 U.S. 104. Petitioner's property clear-

ly met the test of ‘“‘destruction of its use or economic value”’

as a result of Federal defendant's non-judicial actions.

(Testimony of Isenogle, Department of Interior, pages

110-113, 114-118, 123-127; kxhibit Plaintiff 37, Pages

85-90; Appendix B, Item 6). After declaring that “‘...this

Court has never held that the navigational servitude

creates a blanket exception to the taking clause...,’’ after

reviewing three major factors in the taking evaluation, the

Court held on the facts before it, as we contend in this case,

that the government's action went so far beyond ordinary

regulation as to amount to a taking. See Kaiser Aetna v.

U.S., 444 U.S. 164 (1979).

The pivotal factor which permeates these entire pro-

ceedings has also been overlooked—we are not dealing with

a single instance of the exercise of the authority of either

the Corps of Engineers or the Department of Interior, but

an artificial accumulation of concerted action by these two

administrative agencies to remove Petitioner's property

from private hands and make it a part of the public domain.

This far exceeds the constitutional standards laid

down by this court in Penn Centrai Transportation Co. v.

City of New York, supra, and on the facts is distinguished

from Jentgen v. U.S., 657 F.2d 1210 (Ct. Cl. 1981), cert.

den., 455 U.S. 1017, and Deltona Corp. v. U.S., 657 F.2d

1184 (Ct. Cl. 1981), cert. den, 455 U.S. 1017. The cir-

cumstances in the instant case are analgous to the factual

situations which led to the determination of a Fifth Amend-

ment violation in the avigational easement cases in which

the right to recovery was predicated on the extent of

governmental encroachment. Peabody v. U.S., 231 U.S. 530

(1913); U.S. v. Causby, 328 U.S. 256 (1946). For this reason,

the facts of this case are emphasized to show tLe causation

of complete loss by the excesses of the Federal defendants.

Accordingly, petitioner has vehemently and con-

sistently contended that the constitutional questions

presented are real, serious and meritorious; that, therefore,

the court below not only had the right, but the obligation,

to determine whether Petitioner's Fifth Amendment rights

to either due process or just compensation had been

violated.

The threshold issue addressing itself to the exercise

of the permit power, is directed to the means in which it

was enforced, clearly demonstrating an abuse of the ad-

ministrative power. First, it must be kept in mind that this

was the initial instance of enforcement of the RHA or CWA

in Louisiana.® Secondly, we emphasize that the District

Engineer did not know or completely ignored the simple

fact that his planning department had received and ex-

amined the plans and specifications for Petitioner's levee

and pumping station, and advised the parish authorities

that if completed according to these plans and specifica-

tions, the Bavou des Familles levee would meet the Corps’

own requirements for 100-year hurricane protection, and

was being built at a location and meeting requirements

which had been prescribed by the Corps itself.

Not only was the District Engineer not cognizant of

the proceedings in his own department, he didn’t know his

own regulations. It has never been denied that the District

Engineer advised the Petitioner's counsel that the Kenta

Audubon Society v. Col. Robert E. Lee, not reported, wherein the Court

held that a permit was not necessary because of a “nationwide permit”

created by 33 CFR §§ 322.4(g) and 323.4-1(a), which applied to work com-

menced prior to July 25, 1974 (Appendix B, Item 7).

Canali, being a man made body of water, would only be con-

sidered navigable if it connected two navigable bodies of

water, and that, in fact, it did not meet this prerequisite.

The regulation which he cited provided a man-made canal

open on one end was navigable water, if in fact, it was used

in navigation. Once provided evidence that the Kenta

Canal did not connect two navigable bodies of water, and

despite an opinion of district counsel that the canal was not

in fact used in interstate commerce (Appendix B, Item 8),

the District Engineer nevertheless determined that the

Kenta Canal was a navigable body of water for permit pur-

poses in 1973.’ However, the District Engineer determined

in. 1979 that blocking the Kenta Canal would have no effect

on navigation.

The District Engineer was not certain the CWA ap-

plied. If the District Engineer didn’t know, how could the

Petitioner be presumed to know? Applying the principle

that Petitioner's land was below the ‘“‘plane of the mean,

high tide’’, he classified it as ‘wetlands’, subject to CWA

permit regulations. The regulation then in effect did not

say ‘‘reached”’ by the mean high tide, but said ‘‘inundated”’

by it.8 There is nothing in the administrative record to

show that the land is inundated. To the contrary, the

Chatry letter says the tide on the property is from rainfall

"The language of the 1972 regulation referred to by Col. Hunt in

his correspondence and applicable to navigable waters reads as follows:

33 C.F.R. § 209.260(g)(1), E. R. 1165-2-302, “A canal open to

navigable waters of the United States on only one end is itself navigable

where it in fact supports interstate commerce.”

8 33 C.F.R. §209.260(k)(ii(2), E. R. 1165-2-302 says: “Regulatory

jurisdiction extends to the entire surface and bed of ali waterbodies sub-

ject to tidal action...'’ [however] ‘‘ Marsh lands and similar areas are thus

considered ‘navigable in law,’ but only so far as the area is subject to in-

undation by mean high waters.'’ (Emphasis ours)

only, and the only tidal data in the administrative record

seeks to establish that, theoretically, the hypothetical

‘plane’ of the level of the mean high tide at a measuring

post seven miles away, if extended from the coastline,

would be above portions of Petitioner's land—it clearly

does not show inundation. Over objection of Petitioner, ex-

pert witnesses were permitted to state that in their opinion

the land was saturated and therefore “‘inundated”.? They

did not find the land covered by the tide. The record shows

that the average tidal variance was only .25 a foot, i.e. three

inches, a fortiori for this land to have been inundated it

would be permanently covered. Nevertheless, none of this

was relevant because in the regulations in effect in 1979,

what has been characterized as a ‘‘nationwide permit”’ pro-

vided that the CWA wetland regulations would not apply

to first offenders who began work before July 25, 1974,

thus clearly exempting Petitioners. }°

9 Subsequent regulations broaden the scope of the jurisdiction of

the Corps of Engineers both with respect to RHA and CWA. In reaching

its decision in 1979, the District Engineer applied the subsequent

regulations. We urge that this was an improper application and that

there was no right to apply subsequent regulations where in fact thev

negatively affected property rights, and that accordingly, retroactiy ity

was not a proper application, and in support of our contention, ciced in-

ter alia Manhattan General Equipment Co. v. Commissioner of Internal

Revenue, 297 U.S. 129 (1936); Securities and Exchange Commission v.

Chenery Corp., 332 U.S. 194 (1947); Green v. U.S., 376 U.S. 149 (1964);

Bradley v. School Board of City of Richmond, 416 U.S. 696 (1974). We

have by no means abandoned this argument, advise the Court of it so

it knows of its existence, and if writs are granted, will urge this «

another element of error in the courts below.

10 35 C.F.R §§322.4(g) and 323.4-1(a) create the nationwide per-

mit exemption and provide that ‘structures or work completed before

18 December 196%, or in waterbodies over which the District Engineer

has not assertea jurisdiction, provided there is no interference with

navigation..."’ and commenced prior to July 25, 1975, are not subject to

the permit requirement. This is the regulation applied by the Corps in

the Orleans Audubon case, supra.

On October 30, 1975, General Kenneth E. McIntyre,

Corps of Engineers, in connection with what iz charac-

terized as the ‘‘V”’ levee (which is across the highway and

further south than the property in question) ruled that hur-

ricane protection as more important than the environ-

mental consequences and ordered the permit for the ‘‘V”’

levee issued.!! The District Engineer, even though of the

eight elements considered, five were in favor of Petitioner,

completely ignored the prior decision of General McIntyre,

decided this case upon (a) the environmental issues and (b)

the accommodation of the Department of Interior for the

Park Protection Zone and denied the permit while at the

same time in Orleans Audubon, supra, was granting a per-

mit based on the ‘nationwide permit’ in very similar

circumstances.

Of course we cannot quarrel with the authorities

cited by the Appellee that the interpretation of a regulation

by the administrative authority is entitled to great weight.

We are not attacking the interpretation of the regulations.

We are attacking the application of the regulations, based

upon the basic constitutional concept that they must be ap-

plied uniforraly, without discrimination, and without an

abuse of administrative authority.

By way of summary, therefore we urge that it is

abundantly clear from this record that these are excesses of

administrative procedure and accordingly, Fifth Amend-

ment violations, or at the very least, basis for overturning

the administrative action as arbitrary and capricious:

1) According to its own interpretation of the

regulations, in 1973 the Kenta Canal was not a

11 Administrative record, Exhibit A, Part S, the letter from

McIntyre to Meyers, dated October 30, 1975.

-—*

navigable body of water and the action of the

District Engineer in asserting RHA authority .

was in violation of its own regulations.

2) The application of the CWA on the basis that

the land was below the extension of the

hypothetical plane of a mean high tide, in light of

the unequivocal language of the regulation that

the land must be inundated by the high-tide,

clearly demonstrates that in 1974 the Corps did

not have jurisdiction under the Clean Water Act.

This is confirmed and ratified by the Corps’ own

regulations subsequently enacted exempting first

applicants under a nationwide exemption which

ran until July 25, 1975, 12

3) The consideration by the District Engineer of

the needs of the Hurricane Protection Levee and

the Park Protection Zone as factors weighing on

the permit application is an abuse of authority.

The criteria are prescribed by the regulations

themselves, and such considerations are not

among them, 33 CFR §§ 320.4(a)(2), 320.4(b).

12 The relevance of this is further confirmed by the concession of

the Corps of Engineers at the trial that the gauge which was utilized to

determine the level of the high tide was located at Bayou Barataria,

some 7 miles away, and was in error. It appears that the level of the

mean high tide was not 1.5 feet Cairo Datum, but 8.5 feet Cairo Datum.

This would mean that a tide of approximately 10 inches would have to

cover land 7 miles away from the shoreline where the tide fluctuated.

The subsequent findings of the Corps’ expert, admitted into evidence

over the objection that it was not a part of the administrative record,

was that because the water had saline content the land was “inundated”’

was clearly not supported by fact. The land is surrounded on three sides

by heavy concentration of salt water, all of which is from 5 to 7 miles

away; the land itself Consists of, according to the Corps of Engineers’

own testimony (also admitted over objection) land which was built up in

this area from tidal overflow, and the water table itself is extremely high

as it was in New Orleans before drainage was instituted. There is no

evidence that this land is covered by the high tide, except in the rare in-

stances of hurricane or flood.

“4

4) Criteria are specified for the determination of

permit approval or rejection. Of the eight stan-

dards considered by the District Engineer, five

were decided in favor of Petitioner and three

against. Frankly, the only one considered was the

environmental factor.)

5) The inconsistent permit rulings by the Corps

of Engineers in the only two instances of record:

The ‘‘V”’ levee across the highway and south of

this property (McIntyre letter, Exhibit A, Part S)

and the pranting of the permit in Orleans

Audubon.!4

With respect to Lafitte Park, we commend the Court

to the broad language of the enabling statute (Appendix A,

Item 1) as to the purpose of the PPZ guidelines.

Pretermitting the issue whether the statute confined

the Department of Interior to six months to promulgate

guidelines, repetitious though it is, we must reiterate our

position that whereas Congress has the right to create a

park, it cannot by the device of a protection zone, do in-

directly what it cannot do directly, and by legislative and

19 There are two interesting points in this connection. First, in

selecting its original line upon which the Petitioners built their levee, the

Corps had already weighed the environmental factors and found that

hurricane protection was more important than the miniscule effect on

the environment of this levee, and now, it appears from the press, that

the Corps is prepared to allow the completion of a levee along this levee

line, provided that the Kenta Canal remains open, with flood gates

which shall be closed in the event of flood or hurricane from the west.

14 The decision rendered in Orleans Audubon was at approximate

ly the same time as the decision rendered in the Bayou des Familles’

case. In his letter dated June 7, 1979, the District Engineer refers to and

bases his conclusion not to require a permit on the fact that there had

been no prior enforcement of these regulations prior to January 1975,

obviousiy referring to the case now before the Court.

administrative legerdemain, enlarge the Core Area through

establishing a protection zone which differs in name only

from the park Core Area.

CONCLUSION

We strongly urge that this Court is the last resort to

do what the Fifth Amendment was meant to do, that is pro-

tect private property from predatory actions of the Federal

government and its agencies.

The combined effect of the permit procedure re-

quirements of the hurricane protection levee determination

and its accommodation to the PPZ, and the nature of the

Park Protection Zone statutes and guidelines, pose serious

constitutional issues which the District Court had the

right, if not the obligation to decide: (a) was this a taking

of property without due process subject to injunction? Or,

(b) if not, was this a taking without just compensation in

violation of the Fifth Amendment, and if so, should the

matter be remanded to the Court of Claims to determine

“quantum’’?

The District Court clearly had the authority to deter-

mine some issues with respect to the status of the PPZ, and

we believe that our argument that the word “shall” was

mandatory, was valid and, if not, the PPZ is clearly both a

congressional and administrative taking of property

without due process.

It is respectfully prayed that a Petition for a Writ of

Certiorari issue herein and after due proceedings the deci-

sions of the District Court end the United States Circuit

Court of Appeals for the Fifth Circuit be reversed and

Petitioner be granted the relief sought.

Respectfully submitted,

STEEG & O’CONNOR

1440 Oil & Gas Building

1100 Tulane Avenue

New Orleans, Louisiana 70112

(504) 581-9362

( demeee

BY:

MOISE S. STEEG, JR.

CERTIFICATE

I hereby certify that a copy of the above and forego-

ing has been served on the Solicitor General of the United

States and all counsel of record in this proceeding by

depositing a copy of same, duly addressed to each of them,

in the — States Mail, First Class, postage prepaid,

this_Z9 day of _YAewlare her, 1983.

/) Mteoreetl~

MOISE S. STEEG, JR

STEEG & O’CONNOR

1440 Oil & Gas Building

1100 Tulane Avenue

New Orleans, Louisiana 70112

(504) 581-9362

A-1

APPENDIX “A”

Jean Lafitte National Historic Park Act, 16 U.S.C. §

230, P.L. 95-625, §§ 901, 902

Sec. 901. In order to preserve for the education,

inspiration, and benefit of present and future

generations significant examples of natural and

historical resources of the Mississippi Delta

region and to provide for their interpretation in

such manner as to portray the development of

cultural diversity in the region, there is author-

ized to be established in the State of Louisiana

the Jean Lafitte National Historical Park and

Preserve (hereinafter referred to as the ‘‘park’’).

The park shall consist of (1) the area of approx-

imately twenty thousand acres generally depicted

on the map entitled ‘‘Barataria Marsh Unit-Jean

Lafitte National Historical Park and Preserve’’

numbered 90,000B and dated April 1978, which

shall be on file and available for public inspection

in the office of the National Park Service, Depart-

ment of the Interior; (2) the area known as Big

Oak Island; (3) an area or areas within the French

Quarter section of the city of New Orleans as may

be designated by the Secretary of the Interior for

an interpretive and administrative facility; (4) the

Chalmette National Historical Park; and (5) such

additional natural, cultural, and _ historical

resources in the French Quarter and Garden

District of New Orleans, forts in the delta region,

plantations, and Acadian towns and villages in

the Saint Martinville area and such other areas

and sites as are subject to cooperative agree-

ments in accordance with the provisions of this

title.

Sec. 902. (a) Within the Barataria Marsh Unit

the Secretary is authorized to acquire not to

A-2

exceed eight thousand acres of lands, waters, and

interests therein (hereinafter referred to as the

“core area’’), as depicted on the map referred to in

the first section of this title, by donation, pur-

chase with donated or appropriated funds, or ex-

change. The Secretary may also acquire by any of

the foregoing methods such lands and interests

therein, including leasehold interests, as he may

designate in the French Quarter of New Orleans

for development and operation as an interpretive

and administrative facility. Lands, waters, and

interests therein owned by the State of Louisiana

or any political subdivision thereof may be ac-

quired only by donation. In acquiring property

pursuant to this title, the Secretary may not ac-

quire right, to oil and gas without the consent of

the owner, but the exercise of such rights shall be

subject to such regulations as the Secretary may

promulgate in furtherance of the purposes of this

title.

(b) With respect to the lands, waters, and in-

terests therein generally depicted as the “park

protection zone’”’ on the map referred to in the

first section of this title, the Secretary shall, no

later than six months from the date of enactment

of this Act, in consultation with the affected

State and local units of government, develop a set

of guidelines or criteria applicable to the use and

development of properties within the park protec-

tion zone to be enacted and enforced by the State

or local units of government.

suant to subsection (b) of this section shall be to

preserve and protect the following values within

the core area:

(1) fresh water drainage patterns from the

park protection zone into the core area;

A-3

(2) vegetative cover;

(3) integrity of ecological and biological

systems; and

(4) water and air quality.

(d) Where the State or local units of government

deem it appropriate, they may cede to the

Secretary, and the Secretary is authorized to ac-

cept, the power and authority to confect and en-

force a program or set of rules pursuant to the

guidelines established under subsection (b) of this

section for the purpose of protecting the values

described in subsection (c) of this section.

(e) The Secretary, upon the failure of the State

or local units of government to enact rules pur-

suant to subsection (b) of this section or enforce

such rules so as to protect the values enumerated

in subsection (c) of this section, may acquire such

lands, servitudes, or interests in lands within the

park protection zone as he deems necessary to

protect the values enumerated in subsection (c) of

this section.

(f) The Secretary may revise the boundaries of

the park protection zone, notwithstanding any

other provision of law, to include or exclude pro-

perties, but only with the consent of Jefferson

Parish.

A-4

33 C.F.R. §§ 322.4(g), 323.3(a), 323.4-1

§322.4 Structures and work permitted by this

regulation.

The following structures or work are hereby

permitted for purposes of Section 10 and do not

require separate Department of the Army

permits:

* * *

(g) Structures or work completed before 18

December 1968 or in waterbodies over which the

District Engineer has not asserted jurisdiction

provided there is no interference with navigation.

§323.3 Discharges requiring permits.

(a) General. Department of the Army permits

will be required for the discharge of dredged or fill

material into waters of the United States. Certain

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

323.4-3 are permitted by this regulation. If a

discharge of dredged or fill material is not permit-

ted by this regulation, an individual or general

Section 404 permit will be required for the

discharge of dredged or fill material into waters of

the United States in accordance with the follow-

ing phased schedule:

(1) Before July 25, 1975, discharges into

navigable waters of the United States.

(2) After July 25, 1975, discharges into

navigable waters of the United States and adja-

cent wetlands.

(3) After September 1, 1976, discharges into

navigable waters of the United States and their

primary tributaries, including adjacent wetlands,

A-5

and into natural iakes, greater than 5 acres in sur-

face area. (See also § 323.4-2 for discharges that are

permitted by this regulation.)

(4) After July 1, 1977, discharges into all waters

of the United States. (See also § 323.4-2 for

discharges that are permitted by this regulation.)

§323.4-1 Discharges prior to effective dates of

phasing.

(a) Discharges of dredged or fill material in waters

of the United States that occur before the phase-

in dates specified in § 323.3(a)(2) through (4) of this

part are hereby permitted for purposes of Section

404, provided the conditions in paragraph (c) of this

section, are met.

(b) Discharges of dredged or fill material of less

than 500 cubic yards into waters other than navi-

gable waters of the United States (see 33 CFR Part

329) that are part of an activity that was commenc-

ed before July 25, 1975, that were completed by

January 25, 1976, and that involve a single and

complete project and not a number of projects

associated wiih a complete development plan are

hereby permitted for purposes of Section 404, pro-

vided the conditions in paragraph (c) of this sec-

tion, are met. The term ‘‘commenced” as used

herein shall be satisfied if there has been, before

July 25, 1975, some discharge of dredged or fill

material as a part of the above activity or an enter-

ing into of a written contractual obligation to have

the dredged or fill material discharged at a

designated disposal site by a contractor.

ing conditions must have been satisfied for the

discharges occurring before the dates specified in

paragraphs (a) and (b) of this section:

A-6

(1) That the discharge was not located in the

proximity of a public water intake;

(2) That the discharge did not contain unaccep-

table levels of pathogenic organisms in areas used

for recreation involving physical contact with the

water;

(3) That the discharge did not occur in areas of

concentrated shellfish production; and

(4) that the discharge did not destroy or en-

danger the critical habitat or a threatened or en-

dangered species, as identified under the En-

dangered Species Act.

33 C.F.R. 209.260(g), (k)

§209.260 Definition of navigable waters of the

United States.

* * +

(g) Improved or natural condition of the water

body. Determinations are not limited to the

natural or original condition of the water body.

Navigability may also be found where artificial

aids have been or may be used to make the water

body suitable for use in navigation.

(1) Existing improvements: Artificial water

bodies. (i) An artificial channel may often con-

stitute a navigable water of the United States,

even though it has been privately developed and

maintained, or passes through private property.

The test is generally as developed above; that

is, whether the water body is capable of use for

purposes of interstate commerce. Canals which

connect two navigable waters of the United

States and which are used for commerce clearly

fall within the test, and themselves become

A-7

navigable. A canal open to navigable waters of

the United States on only one end is itself

navigable where it in fact supports interstate

commerce.

(ii) The artificial water body may be a major

portion of a river or harbor area or merely a minor

backwash, slip, or turning area.

(iii) Private ownership of the lands underlying

the water body, or of the lands through which it

runs, does not preclude a finding of navigability.

Ownership does become a controlling factor if a

privately constructed and operated canal is not

used for purposes of interstate commerce nor

used by the public; it is then not considered to be

a navigable water of the United States. However,

a private water body, even though not itself

navigable, may so affect the navigable capacity of

nearby waters as to nevertheless be subject to

certain regulatory authorities.

(2) Nonexisting improvements, past or poten-

tial. A water body may also be considered

navigable depending on the feasibility of future

use for interstate commerce after the -onstruc-

tion of whatever ‘reasonable’ improvements

may potentially be made. The improvements need

not exist, be planned, nor even authorized; it is

enough that potentially they could be made.

What is a ‘reasonable’ improvement is always a

matter of degree; there must be a balance between

cost and need at a time when the improvement

would be (or would have been) useful. Thus, if an

improvement was ‘‘reasonable”’ at a time of past

use, the water was therefore navigable in law

from that time forward. The changes in engineer-

ing practices or the coming of new industries with

varying classes of freight may affect the type of

the improvement; those which may be entirely

A-8

reasonable in a _ thickly populated, highly

developed, industrial region may have been en-

tirely too costly for the same region in the days of

the pioneers. The determination of reasonable im-

provement is often similar to the cost analyses

presently made in Corps of Engineers studies.

* * *

(k) Geographic and jurisdictional limits of

oceanic and tidal waters—(1) Ocean and coastal

waters. The navigable waters of the United

States over which Corps of Engineers regulatory

jurisdiction extends include all ocean and coastal

waters within a zone 3 geographic (nautical) miles

seaward from the coast line. Wider zones are

recognized for special regulatory powers, such as

those exercised over the Outer Continental Shelf.

(i) Coast line defined. Generally, where the

shore directly contacts the open sea, the line on

the shore reached by the ordinary low tides com-

prises the coast line from which the distance of 3

geographic miles is measured. On the Pacific

coasts the line of mean lower low water is used.

The line has significance for both domestic and in-

ternational law (in which it is termed the ‘‘base-

line’), and is subject to precise definitions.

Special problems arise when offshore rocks,

islands, or other bodies exist, and the line may

have to be drawn to seaward of such bodies.

(ii) Shoreward limit of jurisdiction. Regulatory

jurisdiction in coastal areas extends to the line on

the shore reached by the plane of the mean

(average) high water. However, on the Pacific

coasts, the line reached by the mean of the higher

high waters is used. Where precise determination

of the actual location of the line becomes

necessary, it must be established by survey with

reference to the available tidal datum, preferably

A-9

averaged over a period of 18.6 years. Less precise

methods, such as observation of the ‘‘apparent

shoreline’ which is determined by reference to

physical markings, lines of vegetation, or changes

in type of vegetation, may be used only where an

estimate is needed of the line reached by the mean

high water.

(2) Bays and estuaries. Regulatory jurisdiction

extends to the entire surface and bed of all water

bodies subject to tidal action. Jurisdiction thus

extends to the edge (as determined by paragraph

(k)(1)(ii) of this section, “‘Shoreward Limit’’) of all

such water bodies, even though portions of the

water body may be extremely shallow, or ob-

structed by shoals, vegetation, or other barriers.

Marshlands and similar areas are thus considered

“navigable in law,’’ but only so far as the area is

subject to innundation by the mean high waters.

The relevant test is therefore the presence of the

mean high tidal waters, and not the general test

described above, which generally applies to in-

land rivers and lakes.

A-10

APPENDIX “B”

BAYOU DES FAMILLES

DEVELOPMENT CORPORATION,

Plaintiff,

Vv.

UNITED STATES CORPS OF ENGINEERS,

United States Department of the Interior,

and United States of America,

Defendants.

Civ. A. No. 79-4324

United States District Court,

E.D. Louisiana.

April 20, 1982.

Developer of river front property sought declaratory

and injunctive relief from actions by the federal govern-

ment which had prevented developer from developing its

property. The District Court, Cassibry, J., held that: (1) for

purpose of establishing federal regulatory jurisdiction

under the Rivers and Harbors Appropriations Act of 1899,

the amount of tidal influence is irrelevant as long as a

water body is in fact subject to the ebb and flow of the tide;

(2) where property which developer intended to drain by

means of construction of levee and pumping station was

marshland inundated by mean high tide, Army Corps of

Engineers had jurisdicticn under Rivers and Harbors Ap-

propriations Act of 1899 over property, and developer's

failure to obtain a permit prior to construction of levee con-

stituted a violation of permit requirements of Act; and (3)

where development of area in question and resultant

destruction of almost 2,000 acres of wetlands would result

A-11

in loss of wildlife habitat, loss of water purification and

filtration benefits, and would have significant adverse im-

pact on area fisheries resources due to loss of detritus con-

tribution and habitat, Army Corps of Engineers did not

abuse its discretion in denying developer's after-the-fact

application for a permit to construct a levee and pumping

station to facilitate development.

Order accordingly.

Moise S. Steeg, Jr., Robert M. Steeg, Carl J.

Schumacher, Jr., New Orleans, La., for plaintiff.

Elizabeth Stein, Dept. of Justice, Washington, D.C.,

William F. Baity, Asst. U.S. Atty., New Orleans, La., for

defendants.

CASSIBRY, District Judge:

Plaintiff seeks declaratory and injunctive relief from

actions by the federal government which have prevented

plaintiff from developing its property. Trial in this matter

was held before the court without a jury in October 1981.

After considering the pleadings, the voluminous ad-

ministrative record, the testimony of the witnesses, the

documents in evidence, and the law applicable to this case,

the court finds in favor of the federal defendants on all

claims.

FACTS

Plaintiff Bayou des Familles Development Corpora-

tion (““BDF’’) was formed in August 1972 as a real estate

investment venture by several persons who planned to

A-12

develop and sell approximately 2,000 acres of land located

on the West Bank of the Mississippi River in Jefferson

Parish, about halfway between New Orleans and Barataria,

Louisiana. Much of the property is cypress-tupelo gum

swamp and marsh. BDF'’s development plan called for the

excavation of a canal and construction of a levee and pump-

ing station to drain the area. Portions of the property were

to be filled for streets and construction of residences and

other structures. The plan called for the blocking of Kenta

Canal, a man-made waterway which extends into the sub-

ject property and connects at its southerly end with Bayou

Barataria, a segment of the Gulf Intracoastal Waterway.

\. The development plan also called for the blocking of Bayou

Boeuf, a natural waterway that connects through the

Bayou Segnette Waterway to the Gulf Intracoastal Water-

way. Both Kenta Canal and Bayou Boeuf have direct

hydraulic connections to the Gulf of Mexico and are sub-

ject to tidal influence.

The U.S. Army Corps of Engineers (‘‘the Corps’’) has

been involved in discussions concerning the possible con-

struction of a hurricane protection levee in the vicinity of

plaintiff's property since 1969. BDF designed its levee to

follow the contour of one of the several alternative levee

lines proposed by the Corps in 1972 for the West Bank

flood control and hurricane protection project.

The federal laws authorizing construction of flood

control projects require local assurances of cooperation,

hold harmless agreements, and often require some local

funding. 33 U.S.C. §§ 701c, 701f. While consultation with

appropriate local authorities is important, the sole authori-

ty and responsibility for preparing a report recommending

a specific project to Congress for approval and funding

rests with the Corps. 33 U.S.C. § 701a-1.

A-13

BDF obtained the necessary permits from Jefferson

Parish for construction of its levee and pumping station. In

July 1973, BDF entered into a contract for the construc-

tion of a pumping station and sewage treatment plant. On

August 16, 1973, BDF entered into a contract for the con-

struction of a levee. The plans for the levee included the

digging of a canal to the west of the levee line for fill and

transportation of materials and equipment. Construction

of the levee and canal system began in August 1973.

On August 21, 1973, Raymond Condon, Director of

the Department of Drainage and Sewerage for Jefferson

Parish, wrote a letter to Roy Farmer, an employee of the

Corps of Engineers Planning Division, which referred to

the BDF levee. The letter forwarded information about the

specifications of the BDF levee pursuant to a request from

the Federal Insurance Administration, Department of

Housing and Urban Development. Mr. Farmer advised him

that such a levee would meet certain Corps hurricane pro-

tection requirements.

The Planning Division of the Corps’ New Orleans

District (‘NOD’) has no authority over permitting or

regulatory functions. That authority rests with the Permit

and Statistics Branch, Operations Division, NOD, which

first became aware of BDF’s unauthorized dredge and fill

work when review was requested of a report dated October

9, 1973. That report was being forwarded to the office of

the Chief Engineer by the Planning Division and concerned

reevaluation of base flood elevations for the Harvey

Drainage Area in Jefferson Parish.

On October 10, 1973, the District Engineer wrote to

Mr. Condon that the levee planned for the Bayou des

Familles area might be constructed, in part, in wetlands

A-14

that were navigable waters of the United States, and re-

quested Mr. Condon to furnish the name of the developer

or contractor who was constructing the levee. On October

18, 1973, Mr. Condon advised the Corps to contact Wilson

Abraham. A certified letter was sent the same day to Mr.

Abraham, one of the BDF investors and developers, advis-

ing that work on the levee should cease immediately pen-

ding a determination as to whether a permit was required.

On October 20, 1973, a letter from the District

Engineer was “srwarded to BDF advising that its levee

construction might require a permit based on the definition

of navigable waterways published in the Federal Register

on September 9, 1972, and that BDF should supply

necessary information for use in determining whether 2

permit was in fact needed. Moise Steeg replied by letter

dated November 8, 1973, requesting that all future cor-

respondence be directed to him as legal counsel for BDF.

Also on November 8, Mr. Abraham wrote to the engineer-

ing firm of Harris and Varisco, consulting engineer for the

levee project, to comment on progress of the levee. He

noted that the levee had sunk in many spots, and that the

work was not proceeding as expeditiously as the contractor

had committed to the previous month.

In January 1974 the Corps issued a cease and desist

order to BDF, having heard nothing further from Mr.

Steeg. The Corps informed BDF that it had determined

that federal permits were required for construction of the

levee and canal, ircluding the closures of Bayou Boeuf and

Kenta Canal, based on an on site inspection of the property

by the Corps. The levee was approximately 90% complete

at that time. ;

On March 8, 1974, the District Engineer wrote to

A-15

BDF to direct it to submit a permit application for dredg-

ing and filling already done and for work necessary to com-

plete the project. BDF was advised that an Environmental

Impact Statement (‘‘EIS’’) would have to be prepared

before final action could be taken on the permit, due to the

potential environmental impact of the proposed project. 42

U.S.C. § 4332(2)(C). On April 4, 1974, BDF suggested to the

Corps that by modifying its plans in such a way as not to

block Bayou Boeuf, it could avoid Corps jurisdiction entire-

ly. BDF also requested a temporary permit to complete the

work already begun. The Corps advised Mr. Steeg that it

had no authority to issue a temporary permit. Information

before the Corps indicated that Bayou Boeuf had already

been blocked.

In February 1975 the United States filed an enforce-

ment action against BDF for violations of Section 10 of the

Rivers and Harbors Appropriations Act of 1899 (““RHA’’),

33 U.S.C. § 403. United States of America v. Bayou des

Familles Development Corporation, No. 75-536 (E.D.La.).

The proceeding was resolved through entry of a final judg-

ment that required BDF to pay a civil penalty of $25,000

and to submit an after-the-fact application to the Corps

within 60 days for all work already done within the “‘pro-

ject area which was done below the elevation of mean high

tide.’’ The ‘‘project area’’ was defined as those areas within

the project which were under the ownership of BDF on Oc-

tober 17, 1974. The elevation of mean high tide for pur-

poses of the order was specified to be 1.5 feet above mean

sea level.

On April 7, 1975, BDF submitted an after-the-fact

application for the construction of a levee to enclose ap-

proximately 2,000 acres. The Corps issued a public notice

of the proposed project on April 28, 1975, including its

A-16

determination that an EIS was required as part of the per-

mit review process.

A draft EIS was submitted to the Corps, and revised

in accordance with the Corps’ comments. A public meeting

on the draft EIS and proposed project was held on October

23, 1975. Numerous persons, several federal agencies and

one state agency expressed objections to the project; some

comments in support of the project were also given. The

Corps received many letters in opposition to the project

after the meeting as well. No responses to the public com-

ments were sent to the Corps by BDF, although ample op-

portunity for response was provided.

The Corps’ deliberations on plaintiff's permit ap-

plication were influenced by the potential creation of the

Jean Lafitte National Historical Park (‘‘the park’’) in the

vicinity of the subject property. Study of the feasibility of

such a park had been funded by a specific congressional ap-

propriation in August 1972. P.L. 92-369. On November 10,

1978, the park was established by act of Congress. 16

U.S.C. § 230. The park boundaries encompass part of

BDF’s property and extend over the levee built by BDF.

The provisions establishing the park cali for the

designation of a ‘core area’ of approximately 8,000 acres

and a ‘“‘park protection zone’”’ of 12,000 acres to serve as a

buffer area between the core area and adjacent

developments. P.L. 95-625, 16 U.S.C. § 230a(b). The

Secretary of the Interior is authorized to acquire property

within the core area, while uses in the park protection zone

are to be regulated by local authorities pursuant to

guidelines developed by the Secretary of the Interior in

consultation with State and local authorities within six

months of the enactment of the statute. If the State and

A-17

local authorities fai! to enact or enforce rules regulating

uses of properties in the park protection zone. the

Secretary of the Interior is authorized to acquire real pro-

perty interests in lands within the park protection zone to

protect the values for which the park was established. Jd.

16 U.S.C. § 230a(e). Numerous local agencies are involved

in developing the guidelines; progress has been slow. To

date, the Jefferson Parish Council has not approved the

proposed guidelines. Over 1000 acres of BDF’s property

lies in the park protection zone.

On January 28, 1980, the Department of the Interior

(“DOI”), through the National Park Service, informed

BDF that DOI proposed to acquire a 151 acre tract for in-

clusion in the core area of the park. DOI has acquired more

than 2200 acres in the core area, but has not yet begun

negotiations with BDF for acquisition of its 151 acre tract.

At the date of trial, funding for such acquisition was very

uncertain.

Another influence on the Corps’ processing of BDF’s

permit application was the continuing uncertainty about

the placement of the West Bank flood control and hur-

ricane protection levee. In May 1978 the Corps presented

a number of proposals for the hurricane levee placement to

the Jefferson Parish Council. Only one of the proposals

presented to the Council followed the alignment of the

BDF levee. In making the proposals, the Corps took into

account the potential creation of the park, later realized in

November 1978.

On September 17, 1979, the District Engineer wrote

to the President of the Jefferson Parish Council to inform

him of the Corps’ decision to recommend to Congress a

levee alignment which followed the park boundaries rather

A-18

than the BDF levee line. The levee alignment proposed by

the Corps would generally provide protection to areas of

the West Bank that have already been developed. The ma-

jority of the subject property, however, lies outside of the

area that would be protected under the Corps’ proposal. In

developing the proposal, the Corps considered, among

other factors, the potential impacts any hurricane levee

would have on the newly-created park and upon the uses

and values to be served and protected by the park.

Because the Corps has not yet received the necessary

local assurances, the Corps has been unable to submit a

final recommendation regarding the levee alignment to

Congress for approval. Congressional approval and ap-

propriations must be obtained before design and construc-

tion of the levee may begin. 33 U.S.C. § 701c.

Finally, after almost four years of deliberations and

intervening events, on September 17, 1979, the Corps

denied BDF’s application for an after-the-fact permit. The

District Engineer articulated the basis for his decision:

I find that denial of the Department of the Army

after-the-fact permit prescribed by regulations

published in 33 C.F.R. 320 through 329 to Bayou

Des Familles Development Corporation is based

on thorough analysis and evaluation of the

various factors enumerated above; that there are

reasonable alternatives available that will achieve

the purposes for which the work is being con-

structed; that the proposed work is not in accor-

dance with the overall desires of the public as

reflected in the comments of state, Federal, and

local agencies and the general public; that the pro-

posed work does not comply with established

State and local laws regulations and codes; that

A-19

there have been identified significant adverse en-

vironmental effects related to the work; that the

denial of this permit is consonant with national

policy, statutes, and administrative directives;

and that on balance the total public interest

should best be served by the denial of a Depart-

ment of the Army after-the-fact permit to Bayou

Des Familles Development Corporation.

The Corps specifically considered the anticipated

flood control benefits that would likely result from the pro-

ject as well as the statements of officials of Jefferson

Parish and others who favored the project. However, in

weighing these benefits against the expected adverse en-

vironmental impacts of the work, the District Engineer

concluded that the detriments outweighed the benefits.

On November 2, 1979, the instant action was filed by

BDF against the Corps, DOI and the United States.! BDF

seeks to enjoin the Corps’ denial of its permit application,

claiming that the Corps lacked jurisdiction over the subject

property in 1973, and in the alternative, that the Corps fail-

ed to give proper weight to the flood protection provided by

BDF’s levee in denying the permit. Plaintiff also seeks to

enjoin the Corps’ recommendation of a levee alignment

other than one following its own levee line. Finally, plaintiff

seeks to enjoin DOI from issuing regulations covering the

park protection zone beyond the six-month period specified

in the park’s authorization statute, and to enjoin DOI from

including its property in the park’s core area without pro-

viding funding for its acquisition.

! Jefferson Parish was originally also named as a defendant, but

was subsequently dismissed.

A-20

CORPS’ JURISDICTION UNDER THE RHA

Plaintiff claims that the Corps’ actions should be in-

validated because the Corps erred in asserting its jurisdic-

tion over the levee project under Section 10 of the Rivers

and Harbors Appropriations Act of 1899 (““RHA’’), 33

U.S.C. § 403. The RHA prohibits any activity affecting the

course, condition, location or capacity of any navigable

water unless authorized by a permit issued by the Corps.

Plaintiff contends that its plans did not affect ‘‘navigable

waters’’ within the meaning of the statute or the Corps’

regulations in effect at the time jurisdiction was asserted.

In regulations published on September 9 and 16,

1972, the Corps defined ‘‘navigable waters’’ to extend its

regulatory jurisdiction in coastal areas to the line on the

shore reached by the plane of the mean (average) high

water. 33 C.F.R. § 209.260(k)(1)(ii). The regulations further

provided that regulatory jurisdiction extends to the entire

surface and bed of all water bodies subject to tidal action

even though portions of the water body may be extremely

shallow, or obstructed by vegetation. 33 C.F.R. §

209.260(k)(2). The Corps ‘asserts that federal regulatory

jurisdiction under Section 10 existed in 1973 because (1)

the plans called for blockage of two tidal waterbodies, Ken-

ta Canal and Bayou Boeuf, and (2) at least some of the

marshland on which the levee was built is ‘‘navigable in

law’’ because it lies below the plane of mean high water.

Judicial precedent recognizes several tests for

navigability: (1) ebb and flow of the tide, (2) connection

with a continuous interstate waterway, (3) navigable

“ “Tidal waters by their very nature form a continuous water

body with interstate watcrways."’ DeFelice, 641 F.2d at 1175.

A-21

capacity, and (4) navigable in fact. United States v.

DeFelice, 641 F.2d 1169 (5th Cir.) cert. denied, __ U.S. _,

102 S.Ct. 474, 70 L.Ed.2d 247 (1981), citing Kaiser Aetna

v. United States, 444 U.S. 164, 170-172, 100 S.Ct. 383,

387-389, 62 L.Ed.2d 332 (1979). The ebb and flow test in

this case establishes the Corps’ jurisdiction over plaintiff's

levee construction under Section 10.

Evidence before the Corps in 1973, and evidence

presented at trial to this court, show that both Kenta Canal

and Bayou Boeuf have a direct hydrological connection to

the Gulf of Mexico through connecting canals, bayous,

lakes, and Barataria Bay. Plaintiff's expert at trial admit-

ted that both waterways are subject to tidal influence, ex-

periencing a range of tide? of approximately 0.2 feet. For

the purpose of establishing federal regulatory jurisdiction,

the amount of tidal influence is irrelevant as long as a

waterbody is in fact subject to the ebb and flow of the tide.

Bayou Boeuf, a natural waterway subject to tidal in-

fluence, is ‘‘navigable’’ for purposes of Section 10 jurisdic-

tion. See United States v. Lewis, 355 F.Supp. 1132

(S.D.Ga.1973); United States v. Cannon, 363 F.Supp. 1045

(D.Del.1973); United States v. Holland, 373 F.Supp. 665

(M.D.Fla.1974); Leslie Salt Co. v. Froehlke, 578 F.2d 742

(9th Cir. 1978). Plaintiff's failure to obtain a permit prior to

blocking Bayou Boeuf constituted a violation of Section 10

of the RHA.

Plaintiff continued to rely on the opinion of the

Corps’ District Counsel, later overturned by the Wash-

ington, D.C. office, that although Kenta Canal was tidal,

3 “Range of tide’ is the difference between mean high tide and

mean low tide.

A-22

as an artificial canal opened only at one end, it was not

‘navigable’. The opinion of the District Counsel, subject

to internal agency review, was not binding on the Corps.

An agency may adjust its policies and rulings in the light

of its experience. Creppel v. U.S. Army Corps of Engineers,

670 F.2d 564 (5th Cir. 1982).

United States v. Stoeco Homes, Inc., 498 F.2d 597

(3d Cir. 1974), is dispositive. In Stoeco the court held that

once artificial water bodies are connected to tidal water

bodies, they become ‘‘navigable waters of the United

States”’ by operation of law. Stoeco, 498 F.2d at 611. This

holding was followed by the Fifth Circuit in United States

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

where the Corps’ jurisdiction was upheld over five canals

connecting to a tidal water body, and in United States v.

DeFelice, supra, where jurisdiction was upheld over con-

struction of a dam across an artificial, privately owned

canal, subject to tidal influence. This court finds that the

Corps’ assertion of jurisdiction over any obstruction of

Kenta Canal, a tidal water body when the 1972 regulations

were issued, was proper. Plaintiff's failure to obtain a per-

mit prior to plugging Kenta Canal constituted a violation

of Section 10 of the RHA.4

The Corps also asserts jurisdiction under the RHA

over marshlands on the subject property which are inun-

dated by mean high tide. 33 C.F.R. § 209.260(k)(1)(ii). Mean

4 Evidence was presented by the federal defendants that Kenta

Canal meets other tests of navigability as well. Past use in interstate

commerce is suggested by evidence of cypress logging activity on Kenta

Canal, but not conclusively proved. Navigable capacity under United

States v. Appalachian Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed.

243 (1940) (commerce could be made possible with artificial aid), was

also suggested. In light of the tidal nature of Kenta Canal, there is no

need for this court to assess the sufficiency of such evidence.

A-23

high tide is defined as the average of all high tides in a

specific area measured over a lunar cycle of 18.6 years. Jd.

Construction of a levee and canal system on tidal marshes,

or construction of a levee which obstructs the ebb and flow

of the tide over tida! marshes, is subject to the permit re-

quirements of Section 10 of the RHA. Stoeco, 498 F.2d at

611.

In October 1970 the Corps performed surveys of the

subject property to establish its ground level elevation in

conjunction with the federal flood insurance program. This

survey showed that the surface elevations of the subject

property near Louisiana State Highway 45, on the eastern

boundary of the property, are about three feet above mean

sea level, or three feet National Geodetic Vertical Datum

(““NGVD"). NGVD is referenced to the 1929 datum, a stan-

dard plane against which elevations are established, and is

simply the zero point for referencing surface elevation. The

elevation steadily drops as one proceeds west from Loui-

siana State Highway 45 until at a distance of about 2,000

feet west of the road, the surface elevation is approximate-

ly 0.0 feet NGVD to -0.2 feet NGVD.

In 1974 the Corps calculated the level of mean high

tide on the subject property to be 1.5 feet above NGVD.

This level of mean high tide in areas of elevation of 1.5 feet

NGVD and less indicates that the area is ‘navigable’

under the Corps’ regulations.

In 1978 the Corps discovered that the calculation of

mean high tide on subject property was too high. In 1980

the tide gauge at Barataria Station, upon which the Corps

had relied in calculating mean high tide to be 1.5 NGVD,

was adjusted by 0.65 feet. Taking the original calculation

of mean high tide at 1.5 feet and correcting for the error in

A-24

the gauge by subtracting 0.65 feet, the corrected mean high

tide value at the subject property is 0.85 feet above NGVD.

The corrected value also indicates that the area is tidally

washed.

Federal defendants claim that plaintiff may not ask

the court to invalidate the assertion of Section 10 jurisdic-

tion based on information never submitted to the agency.

Plaintiff's expert testified at trial that he knew the Corps’

tide gauge must be inaccurate, but BDF never so informed

the Corps. Without deciding the issue of whether the court

in this case should consider the gauge inaccuracy in

evaluating the propriety of the Corps’ actions, see Doyle v.

United States, 599 F.2d 984, 1000-1001, amended In re

Doyle, 609 F.2d 990 (Ct.Cl.1979); D.C. Transit System v.

WMATA, 466 F.2d 394, 413-414, (D.C.Cir.1972), I find that

the inaccuracy makes no difference in the outcome.

Whether mean high tide is assumed to be 1.5 feet NGVD

or 0.85 feet NGVD, the subject property is inundated at

mean high tide.

At trial plaintiff's expert, the consulting engineer for

the BDF project, testified that mean high water did not in-

undate the subject property. In his calculations, he relied

on Coast and Geodetic survey navigation charts published

by the National Ocean Survey, referenced to mean low

water, rather than to NGVD. It is standard practice to

refer to local tide gauges to determine whether mean high

tide inundates property at a given surface elevation

NGVD. The Corps calculated the level of mean high tide on

the subject property by using tide gauge readings from the

gauge closest to the area at Barataria Station, a few miles

away. Plaintiff's expert did not rely on local tide gauges to

reference the mean low tide data to NGVD. I find that the

procedure used by plaintiff's expert does not yield reliable

A-25

results.

Evidence presented at trial by defendants’ expert in

wetlands ecology and identification, Dr. R. Terry Huffman,

adds further support to the finding that the area in ques-

tion is tidally washed. After visiting twelve sites along the

western and southern portions of the property on October

18, 1981, he testified that the soil and water in the area

have a salty taste, indicating some type of tidal flushing.

Watermarks and bright green duckweed on trees four

inches above the water line in some channels suggest tidal

fluctuation in the area. Vegetation found on the property is

consistent with slightly brackish swamp or marsh. Dr.

Huffman observed stunted cypress trees and the absence

of juvenile regeneration at several sites, and concluded that

saltwater intrusion was causing these conditions. The area

is hydrologically connected with waterways that connect

with the Gulf of Mexico. Dr. Huffman testified that the

dikes of channels in the area are breached, permitting an

uninterrupted flow of water onto the subject property, and

that there is evidence of ebb and flow of water in the

breaches. With the exception of the site visited near the

pumping station at the southeastern extremity of the pro-

perty, Dr. Huffman found the area to be subject to tidal

influence.

I find that the Corps’ assertion of jurisdiction over

any obstruction of the tidal marshes on subject property

under Section 10 of the RHA was proper. Plaintiff's failure

to obtain a permit prior to constructing a levee and canal

system on tidal marshland constituted a violation of

federal law. 33 U.S.C. § 403.

=—

A-26

CORPS’ JURISDICTION UNDER THE FWPCA

On October 18, 1972, the Federal Water Pollution

Control Act Amendments (‘“‘FWPCA”’) were enacted. 33

U.S.C. § 1251 et seq. (renamed Clean Water Act in 1977).

Section 301l(a) of the FWPCA, 33 U.S.C. § 1311(a), pro-

hibits discharges of pollutants into the navigable waters

except as authorized by permit. The Corps first proposed

“interim guidance” regulating discharges of dredged or fill

material into the navigable waters pursuant to Section 404

of the FWPCA on May 10, 1973 (38 Fed.Reg.12217). The

Corps issued final Section 404 regulations on April 4, 1974

(39 Fed.Reg.12119). Any discharge of pollutants into

navigable waters, except in compliance with the FWPCA,

is prohibited. 33 U.S.C. § 1311(a). ‘‘Navigable waters”’ are

defined as ‘‘waters of the United States, including the ter-

ritorial seas.’’ 33 U.S.C. § 1362(7). The Corps’ regulatory

jurisdictinn under the FWPCA is broader than its jurisdic-

tion under the RHA. Leslie Salt, 578 F.2d at 754-755 (9th

Cir. 1978); Natural Resources Defense Council v. Callaway,

392 F.Supp. 685 (D.D.C.1975). Under the FWPCA, the

Corps has the right to control the disposal of dredged

material upon freshwater as well as tidal wetlands.

American Dredging Co. v. Dutchyshyn, 480 F.Supp. 957

(E.D.Pa.), aff'd, 614 F.2d 769 (3d Cir. 1979).

It is evident from the legislative history of the Clean

Water Act of 1977 that Congress was aware of the Corps’

interpretation of Section 404, and approved of it. The

Senate Environment and Public Works Committee, in com-

menting on the Senate bill, stated:

Section 404 of the Federal Water Pollution Con-

trol Act Amendments of 1972 required a permit

program to control the adverse effects caused by

A-27

point source discharges of dredged or fill material

into the navigable waters including: (1) the

destruction and degradation of aquatic resources

that resuits from replacing water with dredged

material or fill material; and (2) the contamination

of water resources with dredged or fill material

that contains toxic substances.

The committee amendment is designed to reaf-

firm this intent and dispel the wide-spread fears

that the program is regulating activities that

were not intended to be regulated.

S.Rep.No. 95-370, 95th Cong., 1st Sess. (1977), at 74-75,

reprinted in [1977] U.S. Code Cong. & Ad. News 4326,

4399-4400 (emphasis added).

The permit program established under Section 404 of

the Federal Water Pollution Control Act Amendments of

1972 was intended to control the degradation of aquatic

resources that results from any replacement of water with

fill material, as well as the degradation that results from

the discharge of dredged or fill material which contains tox-

ic substances. See S.Rep.No. 95-370, supra. 33 U.S.C. §

1362(6).

On July 19, 1977, the Corps promulgated final

regulations implementing the permit programs under Sec-

tion 10 of the RHA and Section 404 of the FWPCA. 42

Fed.Reg.37122, codified at 33 C.F.R. § 320-329. These

regulations superseded the September 1972 Corps defini-

tion of navigable waters of the United States. They also

superseded the July 25, 1975, interim final regulations, 40

Fed.Reg. 31320, promulgated in response to NRDC v.

Callaway, supra, which invalidated the Corps 1974 regula-

tions implementing the Section 404 permitting program

A-28

insofar as they purported to limit federal permitting

jurisdiction to traditionally navigable waters. These July

1977 regulations clarified the definition of navigable

waters of the United States to conform with the Corps’

practice relating to permit processing. Wetlands are de-

fined in the 1977 regulations as ‘‘those areas that are inun-

dated or saturated by surface or ground water at a frequen-

cy and duration sufficient to support, and that under nor-

mal circumstances do support a prevalence of vegetation

typically adapted for life in saturated soil conditions.’’ 33

C.F.R. § 323.2(c). This definition is substantively the same

as the July 1975 definition. 33 C.F.R. § 209.120(d)(2) (1976).

The area in question, with the exception of some of

the ridge area along Louisiana State Highway 45, is a

wetland within the regulatory definition of that term.°

> As I have already found, defendants’ expert in wetlands ecology

and identification, Dr. R. Terry Huffman, visited 12 sites chosen as

representative of types of topographic relief, habitat, and vegetative

cover that are indicative of the overall environmental characteristics of

the area in question. In almost all sites visited, Dr. Huffman, based on

his education, experience, and observations, found indications of

wetland hydrology, wetland soil conditions and wetland vegetation.

The soil at most of the sites visited is saturated with water. The

soil is peaty, organic, mucky, and very black. The vegetation is

characteristically that of wetlands, with areas of marsh containing cat-

tails, arrowhead, and maiden cane, and areas of cypress tupelo swamp

complex and floating shrub swamp with bayberry and red maple. Dr.

Huffman found standing water in some areas, which after consulting

with the National Weather Service about recent absence of flooding or

excessive rainfall in the area, he found to be a further indication of

wetland hydrology. Dr. Huffman is trained in remote sensing tech-

niques. His examination of aerial infra-red photographs of the area

taken in 1978, 1974, and 1973, together with his on-site investigation,

led him to the opinion that the entire area in question, with the excep-

tion of the high ridge area, is and has been continuously since at least

1970 a wetland. This court finds that testimony persuasive.

Dr. Huffman's conclusion is supported by the administrative

A-29

The discharges of fill into the tidal wetlands in ques-

tion and the discharges of dredged or fill material to dam

Bayou Boeuf and Kenta Canal as part of plaintiff's levee

project construction constituted discharges of pollutants

into the navigable waters within the meaning of the

FWPCA.

In October 1973 when the Corps’ permitting author-

ities became aware of plaintiff's levee and canal construc-

tion activities, the Corps had the authority under the

FWPCA to require plaintiff to apply for a permit. Further-

more, the Corps properly determined that the discharges of

fill into the wetland area in question and into Bayou Boeuf

and Kenta Canal were subject to federal jurisdiction under

the FWPCA as well as under the RHA. Plaintiff’s failure

to obtain a permit before commencing construction of its

levee and canal system violated federal law. 33 U.S.C. §§

403, 1311(a), 1344.

THE 1979 PERMIT APPLICATION DENIAL

The court, having found that the District Engineer

acted within the scope of his authority in asserting jurisdic-

tion, next must consider whether the decision to deny the

permit was arbitrary and capricious, an abuse of discretion

or otherwise not in accordance with law. Taylor v. District

Engineer, 567 F.2d 1332 (5th Cir. 1976).

In reviewing the Corps’ permit denial, this court is

(Footnote 5 continued)

record, the West Bank Soil Survey prepared by the U.S. Soil Conserva-

tion Service, and the factual testimony of Calvin Patrick O'Neil and S.

Dayton Mathews, both of whom also visited the site. Plaintiff presented

no lay or expert evidence to refute Dr. Huffman’s conclusion that the

area in question is a wetland, and has been one continuously since 1970.

A-30

limited to the administrative record before the Corps at the

time it made its decision in September 1979. Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct.

814, 28 L.Ed.2d 136 (1971); Camp v. Pitts, 411 U.S. 138, 93

S.Ct. 1241, 36 L.Ed.2d 106 (1973).

The standard for review of the Corps’ denial of plain-

tiff's permit application is that provided in the Ad-

ministretive Procedure Act, 5 U.S.C. § 706. The court’s

review is not de novo. The court is not empowered to

substitute its judgment for that of the agency. The review-

ing court must determine whether the agency considered

all relevant factors, but may not reweigh the evidence. Jd.

The July 1977 Corps regulations implementing the

RHA Section 10 and the FWPCA Section 404 permit pro-

grams retain the requirement set forth in previous regula-

tions that all applications for permits to conduct activities

affecting waters of the United States be subject to a public

interest review. 33 C.F.R. § 320. The factors to be con-

sidered include conservation, economics, aesthetics,

general environmental concerns, historic values, fish and

wildlife values, flood damage prevention, land use, naviga-

tien, recreation, water supply, water quality, energy needs,

safety, food production and the general welfare. The regula-

tions state that no permit will be granted unless it is found

to be in the public interest. 33 C.F.R. § 320.4(a). Further,

the regulations require the Corps to evaluate the effects of

a proposed project on wetlands and state that unnecessary

alteration or destruction of wetlands should be discourag-

ed. 33 C.F.R. § 320.4(b). Proposed projects must also be

evaluated with regard to their potential impact on fish and

wildlife, 33 C.F.R. § 320.4(c), and upon water quality, 33

C.F.R. § 320.4(d).

A-31

The 1977 Corps regulations require the Corps to use

the following criteria in evaluating permit applications:

(i) the relative extent of the public and private

need for the proposed structure or work;

(ii) the desirability of using appropriate alter-

native locations and methods to accomplish the

objective of the proposed structure or work;

(iii) the extent and permanence of the beneficial

and/or detrimental effects with (sic) the proposed

structure or work may have on the public and

private uses to which the area is suited; and

(iv) the probable impact of each proposal in rela-

tion to the cumulative effect created by other ex-

isting and anticipated structures or work in the

general area.

33 C.F.R. § 320.4(a)(2).6

that would result from the proposed project.

(b) Effect on wetlands. (1) Wetlands are vital areas that

constitute a productive and valuable public resource, the un-

necessary alteration or destruction of which should be

discouraged as contrary to the public interest

(2) Wetlands considered to perform functions important to

the public interest include:

(i) Wetlands which serve important natural biological func-

tions, including food chain production, general habitat, and

nesting, spawning, rearing and resting sites for aquatic or

land species;

(ii) Wetlands set aside for study of the aquatic environ-

ment or as sanctuaries or refuges;

(iii) Wetlands, the destruction or alteration of which would

A-32

The Corps’ evaluation of Section 404 permit applica-

tions must also take into account the criteria incorporated

(Footnote 6 continued)

affect detrimentally natural drainage characteristics,

sedimentation patterns, salinity distribution, flushing

characteristics, current patterns, or other environmental

characteristics;

(iv) Wetlands which are significant in shielding other areas

from wave action, erosion, or storm damage. Such wetlands

are often associated with barrier beaches, islands, reefs and

bars;

(v) Wetlands which serve as valuable storage areas for

storm and flood waters;

(vi) Wetlands which are prime natural recharge areas.

Prime recharge areas are locations where surface and ground

water are directly interconnected; and

(vii) Wetlands through natural water filtration processes

serve to purify water.

(3) Although a particular alteration of wetlands may con-

stitute a minor change, the cumulative effect of numerous

such piecemeal changes often results in a major impairment

of the wetland resources. Thus, the particular wetland site

for which an application is made will be evaluated with the

recognition that it is part of a complete and interrelated

wetland area. In addition, the District Engineer may under-

take reviews of particular wetland areas in consultation with

the appropriate Regional Director of the Fish and Wildlife

Service, the Regional Director of the National Marine

Fisheries Service of the National Oceanic and Atmospheric

Administration, the Regional Administrator of the En-

vironmental Protection Agency, the local representative of

the Soil Conservation Service of the Department of

Agriculture, and the head of the appropriate State agency to

assess the cumulative effect of activities in such areas.

(4) No permit will be granted to work in wetlands identified

as important by subparagraph (2), above, unless the District

Engineer concludes, on the basis of the analysis required in

paragraph (a), above, that the benefits of the proposed

alteration outweigh the damage to the wetlands resource

and the proposed alteration is necessary to realize those

» A-33

into guidelines established by the Environmental Protec-

tion Agency (“EPA”) pursuant to Section 404(b) of the

FWPCA. See 40 C.F.R. § 230 (40 Fed.Reg. 41293,

September 5. 1975). The EPA § 404(b) guidelines establish

criteria for evaluating the water quality impacts of propos-

ed projects.

The Corps evaluated the public comments, the com-

ments of governmental agencies, the data generated by the

Corps, and the data presented by BDF and its consultants

in reviewing BDF’s application. Of key concern to the

Corps were the comments from the public and from other

federal agencies relating to the environmental effects of the

proposed work.

The area in question provides for water filtration,

assists in maintaining the salinity regime for the Barataria

Basin, provides habitat for terrestrial and aquatic fauna,

and provides significant detritus export vital to the

maintenance and health of Louisiana Gulf fisheries.

Development of the area in question and the destruc-

tion of almost 2,000 acres of wetlands would result in the

loss of wildlife habitat, the loss of water purification and

filtration benefits, amd have significant adverse impacts on

(Footnote 6 continued)

benefits. Jn evaluating whether a particular alteration is

necessary, the District Engineer shall consider whether the

proposed activity is primarily dependent on being located in,

or in close proximity to the aquatic environment and

whether feasible alternative sites are available. The appli-

cant must provide sufficient information on the need to

locate the proposed activity in the wetland and must provide

data on the basis of which the availability of feasible alter-

native sites can be evaluated.

33 C.F.R. § 320.4(b) (emphasis added).

A-34

the Barataria Bay fisheries resources due to loss of detritus

contribution and habitat. After evaluating the above fac-

tors and weighing the public need against the private need

for the project, as required by Corps’ regulations, the

District Engineer concluded that the proposed work would

not be in the public interest.

Based on the evidence in the administrative record

before the Corps at the time it denied plaintiff's permit ap-

plication on September 17, 1979, the Corps’ decision was

not arbitrary or capricious, an abuse of discretion, nor

otherwise not in accordance with law. The Corps considered

all relevant factors. The Corps was required by regulations

to consider not only the flood protection aspects of the pro-

posed project but other factors, including water

dependence of the project and ecological consequences, ef-

fect on wetlands water quality, and effects on fish and

wildlife habitat. 33 C.F.R. § 320.4. The Corps may properly

deny a permit on ecological grounds. Zabel v. Tabb, 430

F.2d 199 (5th Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct.

873, 27 L.Ed.2d 808 (1971).

The court concludes that as a matter of law, plaintiff

is not entitled to ‘‘credit’’ for its previous illegal levee and

canal construction as a factor in evaluating the 1975 permit

application. When a developer proceeds with dredging

operations without permission, it does so at its own peril.

Weiszmann v. District Engineer, 526 F.2d 1302, 1305 (5th

Cir. 1976); United States v. Lewis, 355 F.Supp. 1132, 1141

(S.D.Ga.1973); United States v. Sunset Cove, Inc., 514 F.2d

1089, 1090 (9th Cir. 1975). The Corps notified plaintiff to

cease its dredge and fill operation as soon as the permitting

branch became aware of the work. BDF did not wait for a

final determination of navigability before proceeding with

its operations. Once a final determination was made, BDF

A-35

continued to assert that a permit was not necessary, sub-

mitting its application only when required to do so by the

1975 consent order. Such ‘‘self-help for the impatient’ can-

not circumvent enforcement of the Corps’ statutory man-

dates. United States v. Joseph G. Moretti, 478 F.2d 418,

427 (5th Cir. 1973); Weiszmann v. District Engineer, 526

F.2d at 1305.

Nothing in the evidence presented at trial by plain-

tiffs suggests to the court that the decision to deny the per-

mit was based on less than a full investigation of conditions

and application of the relevant statutes to the facts ad-

duced by the Corps.

CONSTITUTIONAL CLAIMS

Plaintiff has raised a plethora of procedural due pro-

cess claims, most of which can easily be disposed of. These

claims relate to the constitutionality of the Corps’ regula-

tions under the RHA and the FWPCA, the delay in pro-

cessing BDF’s permit application, the failure of the DOI to

promulgate guidelines for the park protection zone and its

authority to act in the future, the failure of Congress to ap-

propriate funds for the acquisition of the subject property

within the core area of the park, and the Corps’ failure to

recommend a West Bank hurricane levee placement in line

with plaintiff's desires. Each issue will be discussed in turn,

bearing in mind that the contemporaneous construction of

an agency of a regulation it is charged with administering

is entitled to deference. Udall v. Tallman, 380 U.S. 1, 16, 85

S.Ct. 792, 801, 13 L.Ed.2d 616 (1965). Further, where an

agency’s interpretation of its own regulation is reasonable,

it must stand even though it may not appear as reasonable

as some other interpretation. Homan & Crimen, Inc. v. Har-

ris, 626 F.2d 1201, 1208-9 reh. denied, 633 F.2d 582 (5th

A-36

Cir. 1980). Agency action is entitled to a presumption of

validity, Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir.), cert.

denied, 426 U.S. 941, 96 S.Ct. 2663, 49 L.Ed.2d 349 (1976),

and statutes are presumptively valid. Port Const. Co. v.

Government of the Virgin Islands, 359 F.2d 663 (3d Cir.

1966). ;

The Permit Proceedings

Arguments concerning the unconstitutionality of the

Corps’ application of Section 10 and Section 404 in this

case are without merit. The Congressional mandate that

plaintiff apply for a permit before constructing a levee on

wetlands below mean high tide is a valid exercise of the

constitutional Commerce Clause power. Zabel v. Tabb, 430

F.2d 199, 203-206 (5th Cir. 1970), cert. denied, 401 U.S. 910,

$1 S.Ct. 873, 27 L.Ed.2d 808 (1971) (holding that the RHA

is constitutional); United States v. Byrd, 609 F.2d 1204

(7th Cir. 1979) (holding that the FWPCA is constitutional

under ‘the Commerce Clause); United States v. Phelps

Dodge Corp., 391 F.Supp. 1181 (D.Ariz.1975) (holding that

the FWPCA is not unconstitutionally vague, that it does

not violate ex post facto principles because of alleged

uncertainty as to the extent of jurisdiction, and that the

commerce power extends to control water pollution in all

waters).

The regulations governing the issuance of permits

under Section 10 and Section 404 are not unconstitutional-

ly vague. They specify the applicable procedures, the

criteria for the public interest review, and the factors that

the Corps must consider. 33 C.F.R. §§ 320-329. Further

guidance is provided by the Environmental Protection

Agency’s § 404(b) guidelines. The record shows that all of

the elements required to be considered by the regulations

A-37

were evaluated by the Corps; the weight to be assigned

each factor is properly left to the discretion of the agency.

The regulations are reasonable and consistent with the in-

tent of Congress. Leslie Salt Co. v. Froehlke, supra.

Absent proof of invidious arbitrary discrimination,

plaintiff's charge of selective prosecution cannot be sus-

tained. United States v. Hercules, Inc., 335 F.Supp. 102

(D.Kan.1971). No such proof has been offered. In cases

such as this, the United States has broad prosecutorial

discretion. Sierra Club v. Train, 557 F.2d 485 (5th Cir.

1977).

The long delay between the submission of plaintiff's

permit application and the Corps’ ruling in 1979, while un-

fortunate, does not rise to the level of a denial of due pro-

cess. The Corps’ consideration of the impact of possible ef-

fluent from plaintiff's proposed sewage treatment plant on

the park, and respect for the park Administrator's request

that a levee not be constructed within the park boundaries,

did not exceed the Corps’ statutory mandate to consider

the environmental effects of the proposed project, see Zabel

v. Tabb, 430 F.2d at 209-214, although consideration of

those factors may have slowed the processing of BDF'’s

permit application. In any event, the authority plaintiff

cites in requesting that the court enjoin the permit denial,

see, e.g. Deering Milliken, Inc. v. Johnston, 295 F.2d 856,

861-64 (4th Cir. 1961); International Association of

Machinists & Aerospace Workers v. National Mediation

Board, 425 F.2d 527, 535 n.3 (D.C.Cir.1970), supports

judicial intervention only to ‘“‘compel agency ac-

tion...unreasonably delayed”’ in accordance with 5 U.S.C. §

706(1), not judicial intervention to invalidate agency action

where the agency has acted in an allegedly unreasonable

time. EEOC v. Raymond Metal Products Co., 385 F.Supp.

at:

A-38

907, 914 (D.Md.1974), aff'd, 530 F.2d 590 (4th Cir. 1976),

cited in Potomac Electric Power Co. v. Environmental Pro-

tection Agency, 650 F.2d 509, 510 n.1 (4th Cir. 1981).

The Park

As I have said, Jean Lafitte National Historical Park

was created by Act of Congress on November 10, 1978. 16

U.S.C. § 230a. The park consists primarily of the 8,000-acre

core area, also referred to as the Barataria Marsh Unit, and

a 12,000-acre Park Protection Zone. The statute authorizes

the Secretary of the Interior to acquire the acreage com-

prising the core area. As to the park protection zone, uses

therein are to be regulated by state and local authorities by

regulations that comport with guidelines to be developed

by the Secretary of the Interior in consultation with those

authorities. Upon failure of local authorities to adopt or en-

force regulations the Secretary may acquire property in-

terests in the park protection zone to protect the values for

which the core area was established. See Section 902(e) of

the Act.

The Park Act delegates unlimited authority to ac-

quire property interests in the core area. It is beyond

dispute that the United States may take land for federal

purposes by eminent domain. Kohl v. United States, 91

U.S. 367, 23 L.Ed. 449 (1875); United States v. Jones, 109

U.S. 513, 3 S.Ct. 346, 27 L.Ed. 1015 (1883); Shoemaker v.

United States, 147 U.S. 282, 13 S.Ct. 361, 37 L.Ed. i70

(1893). Thus, the Park Act, as an exercise of that power, is

constitutional and there is authority for the Department of

the Interior to acquire the 151 acres of the area in question

that are within the core area.

As to the park protection zone, the Secretary’s

nish el

A-39

powers of condemnation are limited. Section 902(e) of the

Park Act, 16 U.S.C. § 230a(e), makes it clear that the

Secretary may not acquire property interests in the park

protection zone unless state and local authorities fail to

enact or enforce regulations for the use of the park protec-

tion zone, and with respect to a particular use or area, such

failure threatens the core area and the values for which it

was created.

The concept of a limited power of condemnation is

not new with this statute. It has been used in other parks.

See, e.g., P.L. 90-545, as amended by P.L. 95-250, 16 U.S.C.

§ 79a et seg. [Redwoods National Park]; P.L. 92-400, 16

U.S.C. § 460aa et seg. [Sawtooth National Recreation

Area].

From a constitutional standpoint, if local authorities

regulate in the park protection zone, it is pursuant to the

police power. However, no local regulations have yet been

enacted; therefore, there is no constitutional issue based on

any state police power authority. Any guidelines developed

by the Secretary of the Interior for the park protection zone

in consultation with State and local authorities would not

be an exercise of the police power. Further, they would not

themselves prohibit any activities in the park protection

zone. Rather, they would provide the criteria pursuant to

which the Secretary may exercise the limited power of con-

demnation in the park protection zone in the event that

local regulations are not enacted or enforced. Since it is en-

tirely speculative at this point whether any state or local

ordinances will be enacted, and if enacted, how they will af-

fect the area in question, plaintiff's claim is not ripe.

Although the Park Act provides for the Secretary of

the Interior to develop guidelines in consultation with

A-40

State and local authorities within six months after enact-

ment of the statute, the court concludes that the six month

deadline is not mandatory. Ralpho v. Bell, 569 F.2d 607,

626-628, reh. denied, 569 F.2d 636 (D.C.Cir.1977); United

States v. Morris, 252 F.2d 643, 649 (5th Cir. 1958). The pro-

vision is not intended as a limitation on power but rather

as a guide for the conduct of orderly procedure, id., and

under the circumstances, the Department of the Interior’s

failure to develop guidelines is excusable. The Department

of the Interior is not precluded from continuing its efforts

to work with state and local authorities to develop

guidelines.

As to the 151 acres, a different issue has been

presented. Plaintiff alleges that there is a violation of due

process where, as here, there has been only an announce-

ment of the intention to condemn, contingent upon the

availability of funds. Funds for acquisition of properties in

the core area have been severely limited. In addition, the

order or priority of acquisition is a discretionary matter.

The slowness of the acquisition process, while perhaps un-

fortunate, goes neither to the authority of Congress to

establish the park nor to the authority of the Department

of the Interior ta make acquisitions. Where the Depart-

ment of the Interior has done all it can to implement the

statute and its requirements, and where inability to pro-

ceed is due to a lack of Congressional authorization or ap-

propriations, it will not be held to have failed to perform

the duties imposed by the statute. Sierra Club v. Depart-

ment of the Interior, 424 F.Supp. 172, 175 (N.D.Cal.1976).

The remedy, if any, lies with Congress. Id.

In conclusion, the court finds that the statute

creating Jean Lafitte National Historical Park is constitu-

tional. The court further finds that the plaintiff has failed

A-41

to state a claim upon which relief may be granted with

respect to the Department of the Interior’s implementation

of the Park Act.

The Hurricane Levee

There is no question that the Flood Control Act, 33

U.S.C. § 701, et seq., is valid on its face as an exercise of the

Commerce Clause power. Development and construction of

flood control projects is clearly a proper activity and is

related to federal authority to regulate navigable waters.

Plaintiff’s claim that the failure to place a flood con-

trol levee where plaintiff would like it to be does not create

a justiciable case or controversy ripe for review. Allain-

Lebreton Co. v. Department of Army, 670 F.2d 43 (5th Cir.

1982).

In 1974 Congress amended the Flood Control Act to

require the Corps, in formulating flood control plans, to

employ the most economically, socially, and environmen-

tally acceptable means of reducing or preventing flood

damages. 33 U.S.C. § 701b-11(a); Creppel v. U.S. Army

Corps of Engineers, 500 F.Supp. 1108, 1117 (E.D.La.1980),

rev'd and remanded, 670 F.2d 564 (5th Cir. 1982). Even if

the Corps did, in mid-1972, propose an alignment similar to

that along which plaintiff later began construction of a

levee, the Corps was not bound by that proposal. Jd. at 572.

The Corps was, however, required to take subse-

quently enacted federal legislation, including the FWPCA,

the amendment to the Flood Control Act, and the Park Act

and regulations, into account in developing a proposal for

hurricane protection on the West Bank. Even if the 1972

proposal had passed an earlier cost-benefit analysis, the

A-42

Corps could not ignore the Congressional policies express-

ed in subsequent legislation. Thus, the Corps has properly

considered subsequent legislation, specifically that legisla-

tion relating to environmental protection and to establish-

ment of Jean Lafitte Park, in developing a flood control

proposal for the West Bank.

Development of recommendations for flood control

projects is entrusted to the Corps’ discretion. 33 U.S.C. §

701b-8. However, the only body with authority to make a

final determination as to whether or where a flood control

project will be funded and built is Congress. Flood control,

dealing as it does with the regulation and flow of navigable

waters, is a responsibility that devolves from Congress’

Commerce Clause power. Even if this court chose to ques-

tion what is clearly a rational legislative judgment, this

court lacks the authority to order the Corps to build a hur-

ricane levee along the alignment of plaintiff's incomplete

levee, as plaintiff has asked the court to do.

This court finds that plaintiff has failed to present

evidence entitling it to relief. Further, the court finds that

the Corps has not erred either in proposing a hurricane

levee alignment that does not include the entirety of the

area in question or in having not yet constructed a levee.

Takings

Plaintiff's exclusive remedy for claims of uncompen-

sated takings, through delay or otherwise, if any are pre-

sent in this case, rests with the Court of Claims under the

Tucker Act, 28 U.S.C. § 1491. American Dredging Com-

pany v. Dutchyshyn, 480 F.Supp. 959 (E.D.Pa.), aff'd, 614

F.2d 769 (3d Cir. 1979). Framing the complaint as one for

injunctive relief cannot defeat Court of Claims jurisdiction.

A-43

A. L. Rowan & Son v. Department of Housing, 611 F.2d

997 (5th Cir. 1980). Because plaintiff has an adequate

remedy at law for money damages if, indeed, any taking of

plaintiff's property has occurred, injunctive relief is not ap-

propriate in this case. Regional Rail Reorganization Cases,

419 U.S. 102, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974).

PETITIONER’S COMMENTS ON

DISTRICT COURT OPINION

The findings of fact of the District Court are general-

ly correct. However, there are some errors as noted below.

References are made to the page of the reported decision.

Page 1029—The Court refers to ‘‘one of the sites”

recommended by the Corps. The Court is confused. In

1972, only one site was recommended. Subsequently in

1978, after the determination of the boundary of the Park

Protection Zone and its co-existence with the levee line

became relevant, some 14 sites were recommended, of

which approximately 7 involved the existing levee line.

After the Parish of Jefferson reversed itself and endorsed

the line on which the Bayou des Familles levee had been

built for purely economical reasons (because it would not

have to pay for the base of the levee or for the land), Col.

Sands, the then District Engineer, declared that this deci-

sion was solely his and that he had chosen the line which

formed the boundary of the Park Protection Zone.

Page 1030—The Court states that Chatry advised

that ‘‘some of the hurricane requirements had been met.”’

This, too, is an understatement, as you will see from

Chatry’s letter which is a part of this record as Appendix

B, Item 4.

A-44

The Court failed to note, although it was emphasized

on several occasions, that with his communication to the

Corps of Engineers on August 20, 1973, the Director of

Sanitation of the Parish of Jefferson had sent the Corps of

Engineers a copy of the Bayou des Familles plans, and fur-

ther failed to recognize that these plans had been sent to

the permit department by a copy of the October 7th letter

from Farmer to Condon, by the copy to C. W. Decker who

was in charge of permits.

Also at Page 1030, the Court adopts Col. Hunt’s (the

then District Engineer) position that he first became aware

of this as a result of an inspection, and does not take note

that Col. Hunt knew or should have known through his

department, that the Corps of Engineers had been advised

as early as August, 1973 of the work on the Bayou des

Familles levee.

Also at Page 1030, the Court refers to the cor-

respondence whereby Bayou des Familles Development

Corps’ counsel agreed not to block Bayou Boeuf. There

seems to be some confusion that Bayou Boeuf has been

blocked. If so, it is also a fact that Bayou des Familles had

no knowledge of this at the time of the correspondence with

Col. Hunt or during the hearing.

Page 1023—The Court infers that the Kenta Canal

has been plugged. This is not a fact. The Kenta Canal has

never been plugged. This is shown by the position of the

Corps of Engineers that it is considering granting the

Parish of Jefferson the right to use this levee line, provided

there are flood gates installed at the Kenta Canal.

Page 1035—In consideration of the CWA, the Court

completely ignored the exemption which was relied upon

A-45

by the Corps itself in the Orleans Audubon case.

Page 1039—We suggest that the Court here, as we

have stressed in argument, completely missed the point of

the constitutional arguments made by the Petitioner.

A-46

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-3700

D. C. Docket No. CA-79-4324-E

BAYOU des FAMILLES

DEVELOPMENT CORPORATION,

Plaintiff-Appeillant,

versus

UNITED STATES CORPS OF ENGINEERS,

ET AL.,

Defendants-Appellees

Appeal from the United States District Court for the

Eastern District of Louisiana

Filed Aug. 19, 1983

Before CLARK, Chief Judge, GOLDBERG and POLITZ,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on ap-

peal and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same is

hereby, affirmed;

IT IS FURTHER ORDERED that plaintiff-

5 re S 7

6 ee ae

A-47

appellant pay to defendants-appellees, the costs un appeal

to be taxed by the Clerk of this Court.

June 23, 1983

ISSUED AS MANDATE: Aug. 18, 1983

Date of Entry, Aug. 22, 1983

A-48

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 81-3700

BAYOU des FAMILLES

DEVELOPMENT CORPORATION,

Plaintiff-Appellant,

versus

UNITED STATES CORPS OF ENGINEERS,

ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Louisiana

ON PETITION FOR REHEARING

(AUGUST 8, 1983)

Before CLARK, Chief Judge, GOLDBERG and POLITZ,

Circuit Judges.

PER CURIAM:

IT IS ORDERED that the petition for rehearing fil-

ed in the above entitled and numbered cause be and the

same is hereby denied.

ENTERED FOR THE COURT:

United States Circuit Judge

¥.

. «.

J =

OS > a

A-49

IN REPLY REFER TO

LMNPL-L 9 October 1973

SUBJECT: Reevaluation of Base Flood Elevations in

Reaches 4 and 5 of the Flood Insurance

Study Jefferson Parish Unincorporated,

Louisiana, Harvey Drainage Area West

Bank of Jefferson Parish

THRU: Division Engineer, Lower Mississippi Valley

ATTN: LAVTD-M

TO: HQDA (DAEN-CNP-F)

WASH DC 20314

1. Re erences inclosed:

a. Copy of letter dated 30 July 1973, Mr. Ray L. Con-

don, Jr., Director, Jefferson Parish Department of

Drainage and Sewerage, subject, “

unincorporated area of Parish of Jefferson, Westbank.”’

b. Copy of letter dated 21 August 1973, Mr. Ray L.

Condon, Jr., Director, Jefferson Parish Department of

Drainage and Sewerage, subject, ‘‘Harvey Drainage Area

West Jefferson Parish.”

2. The subject reevaluation requested by the Federal In-

surance Administration has been completed and results are

furnished herein.

3. The interior levee along Cousins Canal (see Plate 30, in-

closure 3) has recently been degraded, consequently under

present conditions the base flood elevation for Reach 5 is

4.2 feet mean sea level (m.s.l.). At present that portion of

Zone A5 known as Harvey Drainage Area, with the first

A-50

lift of the Corps of Engineers’ levee along Harvey Canal

completed and the Cousins Canal pumping station

operating, is provided with 40-year protection against

hurricane-produced tides. A rainstorm with a recurrent fre-

quency of once in 100 years could produce a stage of 1.9

feet m.s.l. in Reach 5. However, within the Harvey

Drainage Area, when the storm drainage is completed and

connected with the Cousins Canal pumping station the

stage of 100-year rainfall will be reduced to 1.6 feet m.s.l.

This work should be completed within the next six months.

4. Degrading of the interior levee along Cousins Canal in-

corporated a portion of the area originally in Reach 4 into

Reach 5. This area is now served by the new drainage pum-

ping station located on Cousins and Harvey Canals.

5. The Bayou Des Familles levee on the west side of

Barataria Highway (see inclosure 5) is under construction

by private interests, however, the completion date is not

known at this time. If this levee is built to the grade of 7-8

feet m.s.l. as specified in the construction drawings with a

cross section adequate to insure its integrity and is proper-

ly maintained, then Reach 5 will be provided protection

against hurricane-produced stages on the order of once in

100 years or better. When the levee is completed, the flood

stages produced by a 100-year frequency hurricane will be

reduced from 4.2 feet m.s.l. resulting from tides to 1.6 feet

m.s.l. resulting from rainfall only.

6. Three sets of preliminary prints of revised flood in-

surance zone maps and corresponding elevation-frequency

curves covering subject area are inclosed, one set of which

is to be retained by DNV.

7. Copies of the revised maps and elevation frequency

A-51

curves will be available at a later date.

8. A copy of this letter with inclosures has been furnished

Mr. Ray Condon, Director of Jefferson Parish Department

of Drainage and Sewerage.

FOR THE DISTRICT ENGINEER:

FREDERIC M. CHATRY

Acting Chief, Planning Division

5 Incl (trip) BAEHR

1. Copy of letter dated 30 July 1973 LMNED

2. Copy of letter dated 21 August 1973

3. Flood insurance zone maps DECKER

—Plates 17, 24, 25, 30 & 34 LMNOD-S

4. Frequency curves—Reaches 4 & 5

5. Levee location map KING

LMNDE-E

CF: (w/basic + incl)

Mr. Ray Condon CHATRY

Mr. C. Krebs (picked up) LMNPL

Mr. Earl Moss (sent by transmittal slip dated 9 Oct. 73)

A-52

CARD NO. 0338

LMNOD-SP (Jefferson Parish Wetlands)19

Permit Application by Bayou Des Familles Development

Corporation

District Engineer C/Operations Div 10 Dee 75

Mr. Decker/ga/264

1. All comments on the above application and draft EIS

have been received. Planning Division has begun the pro-

cess of preparing the final EIS.

2. It is apparent that the decision on the issuance of a per-

mit and the decision on the West Bank Hurricane Protec-

tion project are closely related. In fact, the decisions should

be made in concert.

3. If a decision is made to deny the permit application, it

would be inconsistent to propose a Corps levee in the same

area. If we propose to build a hurricane levee near the aline-

ment of the Bayou Des Familles levee, there is no reason

why a permit should not be issued.

4. In our opinion, there is sufficient information available

now to support a recommendation for denial without

preparing the final EIS. It is also possible to foresee a

recommendation for issuance of the permit if we will, in the

near future, construct a hurricane protection levee in the

area.

5. We, therefore, propose that representatives of Opera-

tions Division, Planning Division and Counsel meet with

you or LTC Hubert, thoroughly discuss the matter, review

are

A-53

all available information, determine the probability that a

hurricane protection project will encompass the Bayou Des

Familles area and base further actions on the permit mat-

ter on that determination.

6. If it is apparent that denial of the permit will be recom-

mended, we cannot see any value in expending the time of

our personnel in preparing the final EIS and in delaying the

final determination of permit issuance or denial if a finding

can be made now.

7. Strong opposition to issuance of the permit has been ex-

pressed by EPA, MMFS, USF&WS, the State Parks and

Recreation Commission, and the State Planning Office. It

is probable that these same agencies will also oppose a hur-

ricane levee which destroys the wetlands of this area.

NETTLES

CF:

LMNPL

LMNPL-R

LMNPL-RE

LMNPL-F

LMNOC

A-54

P.O. Box 429, Arabi, Louisiana 70032

W38 March 28, 1979

Memorandum

To: Regional Director, Southwest Region

From: Superintendent, Jean Lafitte

Subject: Section 902(b) & (c), PL 95-625 Guidelines on

criteria for use and development in the park pro-

tection zone

Section 902(c) limits the purpose of these guidelines to the

preservation of certain values within the ‘‘core”’ area of the

Park. We need not, therefore, suffer long with the delusion

that the park protection zone is, or can become an effective

extension of the Park under the existing legislation. Even

under Section 902(e), which provides for our acquisition of

properties in the protection zone if all else fails, limits that

acquisition to the interest necessary to achieve the

prescribed degree of protection for the ‘‘core’’ area.

Section 404 of the Federal Water Pollution Control Act,

and the regulations promulgated to implement it, appear to

effectively protect the wetlands in the protection zone from

development requiring dredging or filling. This condition

will prevail as long as the wetlands remain such and the on-

ly activity that has the potential for altering that condition

is the hurricane protection program under study by the

Corps of Engineers. The location of the levees and pumping

stations for this system has been, and will continue to be

controversial. Whatever the Corps study and the politics

trend toward as a location for levees, etc., I'm convinced

that we can effectively keep them out of the protection

boo m6

A-55

zone. The political climate is controlled by two factions at

the moment. One is the proposed water line to the town of

Lafitte which EPA is holding up until the Parish estab-

lishes a growth limit line, which becomes their preferred

location for the hurricane protection levee. The second is a

growing public clamor for flood protection in developed,

developing and undeveloped existing dryland areas. Both

of these are persuading the Parish Council to cooperate

with any endeavor that will speed a decision and the con-

struction of the flood protection system. The only counter

to this trend is coming from owners of property in the

wetlands area that will probably remain outside the protec-

tive levees. Many of these were speculative acquisitions by

corporations and individuals involving large loans, heavy

interest payments and predating the present public,

political and legal climate relative to wetlands. Where the

flood protection system excludes these areas the investors

will find themselves without a market and with literally no

opportunity to develop one.

This is the genisis of the current effort of the Parish Coun-

cil to initiate, through Senator Johnston and Represen-

tative Boggs, additional legislation to expand the fee ac-

quisition area of Jean Lafitte National Historical Park to

include the park protection zone. We would become the

market. If this plan fails, and based on early reaction from

the Congressional staffs it appears that it will, the next

scenario will probably involve a concerted effort to force

our hand toward acquisition under Section 902(e). This

scenario would almost of necessity involve degradation of

wetland, if not parkland resources. It would probably

ultimately succeed with the net effect of causing us to pay

higher prices for less valuable park land. The spectre of this

scenario developing to its climax persuades me to support

the current Parish effort to modify the legislation albiet an

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admitted long shot.

In the interim, we are required by the legislation to develop

the guidelines and criteria for development and use of pro-

perty in the park protection zone. Following are the

guidelines I have drafted and propose to begin discussing

with State and local officials shortly after April 1.

1. The alteration of existing drainage patterns, or natural

water movement, whether in or out of channels, whether

perennial or seasonal, is not permitted.

2. The introduction of any pollutant from any source,

regardless of the degree of treatment is not permitted.

3. The discharge of concentrated storm run-off into either

the park protection zone, or the ‘‘core’’ area of the park is

not permitted.

4. During construction and operation of any development

occuring within the park protection zone, or its watershed,

no sediment, or chemicals from any source will be permit-

ted to escape into the aquatic ecosystem of the park protec-

tion zone, or the ‘‘core’’ area of the park. This includes, but

is not limited to, road surfacing chemicals, petroleum pro-

ducts, fertilizers, pecticides, herbicides, dust, leachades

from waste piles, etc.

5. In recognition of the limited size of the ‘‘core’’ area, its

accessability via several waterways and its interrelation-

ship with the protection zone, a moratorium on leasing and

development of fishing, recreation or trapping camps is

hereby established pending the completion of the general

management plan for the Park.

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6. Anti-litter ordinances will be reviewed, strengthened as

appropriate, and enforced by Jefferson Parish and National

Park Service officials throughout the ‘‘core’’ and protection

zone.

7. Owners of existing camps will be required to haul out

refuse.

8. While the exploration for and development of oil and gas

resources within the Park is envisioned by the legislation

the spirit of these guidelines relative to impacts on natural

water movement, discharge of waste materials, escape of

chemicals and litter is also applicable to these activities.

Your early review and comment on these proposed guide-

lines would be appreciated. Telephone conversations with

anyone interested would also be welcome.

James L. Isenogle

ce: DSC

WASO (Attn. Eldon Reyer)

A-58

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

ORLEANS AUDUBON SOCIETY, CIVIL ACTION

ET AL

NO. 81-2248

VERSUS

SECTION “D”

COLONEL ROBERT C. LEE, ET AL

ORDER

In this action, the Orleans Audubon Society and the

Ecology Center of Louisiana (Plaintiffs) and Intervenor,

Sierra Club, seek to overturn the decision of officials of the

United States Army Corps of Engineers (Corps) and the

United States Environmental Protection Agency (EPA)

not to require Intervenor, CIT Corporation (CIT), to obtain

individual permits under Sections 9 and 10 of the Rivers

and Harbors Appropriations Act of 1899 (RHA), 33 U.S.C.

401, 403, and Section 404 of the Clean Water Act (CWA),

33 U.S.C. 1344. Plaintiffs contend that the failure of the

named officials to require individual permits was arbitrary

and capricious and an abuse of discretion. One of the Mo-

tions before the Court is Plaintiff's Motion for Partial Sum-

mary Judgment declaring the installation of two culverts

in a parcel of land owned by CIT to be illegal and requiring

Defendant, the Corps, to require CIT to apply for a Section

404 Clean Water Act permit and further ordering In-

tervenor, CIT, to remove the culverts in question and

restore the levees to their condition prior to the culvert

installation.

Federal Defendantg and Intervenor, CIT, oppose

Plaintiffs’ Motion for Summary Judgment and fur-

ther seek to have Plaintiffs’ Complaint dismissed or in the

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alternative, to have summary judgment granted in Federal

Defendants’ favor. All of these Motions came on for hear-

ing on a former date and now, after consideration of the

record herein, the memoranda submitted and argument of

counsel, the Court rules as follows:

1. FACTS

The subject of this litigation is a tract of land of ap-

proximately 466 acres located west of the Mississippi River

in Jefferson Parish, Louisiana. The land is primarily a

tupelo gum swamp. In 1972, the predecessor in title to CIT,

the current owner, constructed levees around the property.

In 1976, Colonel E. J. Rush, then the District Engineer for

the New Orleans District of the Corps, issued a cease and

desist order to the predecessor in title and directed that he

apply for an after-the-fact permit for the work in question.

CIT acquired the tract in 1977 through foreclosure and on

June 1, 1977, applied for the after-the-fact permit as its _

predecessor had been directed to do. Subsequent thereto,

Colonel Thomas Sands succeeded Colonel Rush as District

Engineer of the New Orleans District and, after inquiry

from counsel for CIT concerning whether the Corps had

properly asserted Federal Regulatory Jurisdiction over the

activities that were the subject of the after-the-fact permit

application and, after a thorough review and analysis, con-

cluded and so advised counsel for CIT on June 21, 1979,

that the Corps did not have jurisdiction requiring an in-

dividual permit and that the Corps now declined to exercise

discretionary authority to require such a permit because in

the Corps’ opinion, the activities in question were author-

ized under a nationwide permit set forth in 33 CFR 322.4(g)

and 33 CFR 323.4-1(a). Plaintiffs’ challenge this action by

Colonel Sands in not requiring CIT to obtain the after-the-

fact permit.

A-60

In 1979, certain gaps in the levee system were

discovered and the Corps concluded that no individual per-

mit was required for repair of the gaps. Plaintiffs protest

that decision too and in January 1980 sent the Corps and

EPA a letter advising of their intention to sue under Sec-

tion 505 of the CWA, 33 U.S.C. 1365.

In 1980 and 1981, CIT installed drainage culverts

through the levee enclosing the swamp in question and

again Plaintiffs protested and urged the Corps to require

CIT to obtain a permit under the applicable provisions of

the Clean Water Act. The Corps, after consultation with

the EPA, concluded it did not have authority to regulate

the activity in question and that the activities were

authorized by nationwide permit.

In the instant litigation, Plaintiffs seek declaratory

and mandatory injunctive relief and urge this Court to

order the Corps and EPA to require CIT to apply for in-

dividual permits under Section 10 of the RHA and Section

404 of the CWA. Intervenor Sierra seeks the same relief.

2. STANDARD OF REVIEW

At the outset, this Court must consider the ap-

plicable legal standard in reviewing the decision of the

Corps not to require an individual permit for work in ques-

tion. Whether or not this Court agrees with the decision of

the Corps is of no moment.

““***the Court must consider whether the deci-

sion was based on a consideration of relevant fac-

tors and whether there has been a clear error of

judgment...although this inquiry into the facts is

to be searching and careful, the ultimate standard

A-61

of review is a narrow one. The Court is not em-

powered to substitute its judgment for that of the

agency." Citizens to Preserve Overton Park v.

Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28

L.Ed.2d 136 (1971)

Only if the Court finds that the Corps’ decision was

arbitrary, capricious, or in abuse of discretion may this

Court order remedial action. Indeed, the decision of the

agency is presumed to be correct. United States v. City of

Chicago, 400 U.S. 8 (1970). In considering whether or not

the action of the Corps or the action of the EPA was ar-

bitrary, this Court must look to the record before those

agencies when their decisions were reached; Camp v. Pitts,

411 U.S. 138 (1973).

Furthermore, because the decision of the Corps

whether or not to require the individual work permits is

clearly a discretionary function, the relief of mandamus

would not be available to Plaintiffs. Only if this Court

found that the Corps had in fact arbitrarily failed to make

a required discretionary decision could Plaintiffs be afford-

ed any relief. And in that case, the relief to be afforded

would be a remand to the Corps to require them to make

the discretionary decision but without direction as to how

that discretion should be exercised. In the case at bar, the

Corps, after careful consideration, chose not’ to require in-

dividual permits for the activities in question because the

regulatory guidelines, 40 CFR 230 (1975) were not ap-

plicable to the activities in question and the activities in

question were authorized by nationwide permit. Thus, the

issue before this Court is whether or not the Corps, after

consultation with the EPA, abused its discretion in

reaching that decision.

A-62

At oral argument, counsel for Plaintiffs, while initial-

ly suggesting that perhaps the record of the Corps filed

with the Court might not be complete, later conceded that

the Court had at least ‘99 percent of it’’ and that if he

became aware of any additional relative documents he

would bring them to the Court’s attention. No additional

documents have been filed with the Court since oral argu-

ment. Additionally, at oral argument, counsel for Plaintiffs

advised the Court that the Court had before it the required

-documents on which decisions on the various Motions

could be made.

After carefully reviewing the relevant documents,

this Court finds that the discretionary decisions of the

EPA and the Corps are not arbitrary and capricious and do

not reflect an abuse of the discretion granted to those

agencies.

Accordingly, the Motion of Plaintiffs for Pertial

Summary Judgment should be and is hereby DENIED and

the Motions of Defendants and Intervenor, CIT Corpora-

tion, to Dismiss or alternatively for Summary Judgment,

are GRANTED and this suit is dismissed at Plaintiffs’

costs.

New Orleans, Louisiana, this 29th day of March,

1983.

UNITED STATES DISTRICT JUDGE

A-63

OPINION OF THE DISTRICT COUNSEL

Subject body of water is an artificial canal which flows into

Bayou Barataria at its southern end and terminates on

privately-owned property at the northern end. The ex-

istence of past interstate commerce is alluded to in a letter

by the conservation chairman of Orleans Audubon Society

(Exh. 1). Therein it is alleged that log floating operations

were undertaken around 1910. Research has failed to un-

cover substantiation for this position. It cannot be ascer-

tained whether single logs were floated at that time or

whether floating rafts were transported thereon. No suffi-

cient information exists to determine if, in fact, these logs

ever entered interstate commerce or if they were trans-

orally reported by a representative of a local drainage

department that, presently, trappers carry out their ac-

tivities throughout the entire extent of the canal. This

report is unsubstantiated by affidavit or by other concrete

support. Moreover, it is questionable that travel on a body

of water for purposes of private fishing, hunting, and trap-

ping qualifies as interstate commerce. Most cases hold

such activity does not constitute sufficient basis for a find-

ing of federal jurisdiction. See George v. Beavark, Inc. 402

F.2d 977 (8th C.A. 1968)-admiralty case; see also State by

Burnquist v. Bollenbach, 63 N.W. 2d 278.

As a general rule, the character of commerce essential to

navigability is that which is useful and has practical utility

to the public. There has been no showing that the use of

Kenta Canal meets this test. ER 1165-2-302 §8a provides in

pertinent part that ‘‘...A canal open to navigable waters of

the United States on only one end is itself navigable where

it in fact supports interstate commerce.’’ Information con-

tained in subject report fails to lend adequate support to a

A-64

conclusion that interstate commerce is presently sustained

on Kenta Canal. Consequently, there is no justification for

asserting federal jurisdiction over the waterway. ER

1165-2-302 §12b states inter alia that regulatory jurisdic-

tion extends to the entire surface and bed of all waterbodies

subject to tidal action...’’ That regulation cannot be cited

as authority for asserting jurisdiction over subject water-

way since this rule excepts from its scope artificial canals

opened at only one end.

JOSEPH A. TOWERS

District Counsel

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