Appendix — Tull v. United States

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“ {) - Supreme Court, uS.

85-1259 rise

No. ; JAN 24 1986

ANIOL, JR.

CLERK

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IN THE

Suprenwe Court of the United States

OCTOBER TERM, 1985

EDWARD LUNN TULL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD R. NAGEOTTE *

NAGEOTTE, BORINSKY & ZELNICK

14908 Jefferson Davis Hwy.

Woodbridge, Virginia 22191-3997

(703) 491-4136

* Counse: .f Record

Of Counsel:

E. BARRETT PRETTYMAN, JR.

HOGAN & HARTSON

815 Connecticut Avenue, N.W.

Washington, D.C. 20006

(202) 331-4685

WILSON - EPES PRINTING Co.. Inc 789-0096 - WASHINGTON. D.C. 20001

TABLE OF CONTENTS

Page

APPENDIX A—Decision of the Court of Appeals ........ la

APPENDIX B—Denial of petition for rehearing and

suggestion for rehearing en banc, Oc-

SU TR a 26a

APPENDIX C—Denial of petition for rehearing and

suggestion for rehearing en banc, No-

vember 4, 1985 . sticsiaiigichinalidiabigilbat 28a

APPENDIX D—Decision of the District Court 30a

Judgment Order of the District Court 64a

APPENDIX E—Second Amended Complaint . - 67a

APPENDIX F—Constitutional provision, statutes and

regulations involved

APPENDIX G—Statutory penalty provision in other

EE scttnndanbetinieticnanbselinnl 82a

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1766

UNITED STATES OF AMERICA,

Appellee,

versus

EDWARD LUNN TULL,

Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk

Robert G. Doumar, District Judge. (C/A 8-668-N )

Argued: February 7, 1985 Decided : July 30, 1985

Before WINTER, Chief Judge, SNEEDEN, Circuit

Judge, and WARRINER, United States District Judge

for the Eastern District of Virginia, sitting by designa-

tion.

Richard R. Nageotte (Nageotte, Borinsky & Zelnick on

brief) for Appellant; Claire L. McGuire, Department of

Justice (F. Henry Habicht II, Assistant Attorney Gen-

2a

eral; Elsie L. Munsell, United States Attorney, John F.

Kane, Assistant United States Attorney, Diane L. Donley,

Martin W. Matzen, Department of Justice on brief) for

Appellee.

WINTER, Chief Judge:

Defendant Tull, a real estate developer, placed fill on

“wetlands” without a permit at several locacions on the

island of Chincoteague, Virginia. The government sued,

alleging that this filling violated both the Clean Water

Act,’ 33 U.S.C. § 1251 et seqg., and the Rivers and Harbors

Act, 33 U.S.C. § 401 et seg. The district court found Tull

had violated both Acts, fined him, and ordered various

other remedies. Tull appeals, and we affirm.

I.

We begin our discussion by summarizing the statutory

and factual background of this dispute. We then treat

those of appellant’s arguments that merit discussion.

Statutory Background

The Clean Water Act aims “to restore and maintain

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

tion’s waters.” 33 U.S.C. § 1251(a). To accomplish this

purpose, the Act prohibits the discharge without a permit

of dredged or fill material into “navigable waters” of the

United States. 33 U.S.C. §§ 1311, 1344. The Act au-

thorizes the Secretary of the Army to issue the permits

required for such discharges. The Secretary has in turn

delegated this authority to the Corps of Engineers. 33

C.F.R. § 325.8 (1984). The Corps evaluates permit appli-

cations under guidelines developed by the Environmental

Protection Agency in conjunction with the Secretary of

the Army. 33 U.S.C. § 1344(b).

1 Also known as the Federal Water Pollution Control Act.

3a

The reach of the Clean Water Act extends beyond dis-

charges into waters actually supporting navigation. “Nav-

igable waters” are defined as “the waters of the United

States, including the territorial seas.” 33 U.S.C. § 1362

(7). During the legislative proceedings culminating in

the enactment of that section, the Conference Committee

expiained the legislative intent in defining this ‘orm:

The Conferees fully intend that the term “navigable

waters” be given the broadest possible constitutional

interpretation unencumbered by agency determina-

tions which have been made or may be made for

administrative purposes.

S. Conf. Rep. No. 1236, 92d Cong., 2d Sess., reprinted in

1972 U.S. Code Cong. & Ad. News 3776, 3822.

Included in the areas subject to Corps regulation under

the Clean Water Act are “wetlands” adjacent to other

“waters” of the United States. 33 C.F.R. § 323.2(a) (1)-

(7) (1984). “Wetlands” are defined as “those areas that

are inundated or saturated by surface or ground water at

a frequency and duration suffiicent to support, and that

under normal circumstances do support, a prevalence of

vegetation typically adapted to life in saturated soil con-

ditions.” The administrative definition further provides

that wetlands “gerierally include swamps, marshes, bogs

and similar areas.” 33 C.F.R § 323.2(c) (1984).

The Rivers and Harbors Act, which defendant Tull

was also found to have violated, prohibits placing fill in

navigable waters without the authorization of the Secre-

tary of the Army. 33 U.S.C. § 403. This Act defined

“navigable waters” at the time of Tull’s alleged violation

as waters that “have been used in the past, are now used,

or are susceptible to use” for interstate commerce, and

waters subject to the ebb and flow of the tide. 33 C.F.R.

$ 209.260(k) (2) (1975), superseded by 33 C.F.R. § 329.4

(1984) (similar definition).

4a

Factual Background

The government sued Tull in July of 1981 for dumping

fill at three locations in violation of the Clean Water Act:

(1) Ocean Breeze Mobile Homes Sites;

(2) Mire Pond Properties

(3) Eel Creek.

The government later amended its complaint to allege

that by placing fill in Fowling Gut Extended, a manmade

waterway on the Ocean Breeze property, Tull also vio-

lated the Rivers and Harbors Act.

The evidence at a 15-day bench trial showed that Tull

began placing fill on the Ocean Breeze property in 1975,

on the Mire Pond properties in 1978, and on the Eel

Creek property sometime after December of 1980. Tull

filled in Fowling Gut Extended, a body of water described

as a canal or ditch, beginning in 1976. Tull never applied

for a permit to place fill at any of these locations.

Tull did not deny that he had placed fill at the loca-

tions alleged, nor did he claim that he had ever applied

for a permit. Rather, he argued that the properties filled

did not contain wetlands within the meaning of the Clean

Water Act, and that Fowling Gut Extended was not

navigable within the meaning of the Rivers and Harbors

Act. He further argued that the government was estopped

from seeking equitable relief, and that the Clean Water

Act as applied to him was unconstitutional.

On the issue of whether the filled properties contained

wetlands, the government produced at trial extensive evi-

dence, including 12 expert witnesses, to establish that

the areas filled by Tul! included “wetlands” within the

jurisdiction of the Corps of Engineers. Buried soil analy-

sis showed the presence of peat, which develops only in

5a

wetlands system. Vegetation analysis showed the presence

of “obligate” wetlands species, which require saturated

soil conditions. Expert testimony established tidal in-

fluence and some degree of inundation.

Dr. Donna Ware, a court-appointed expert, agreed with

the conclusions of the government witnesses, finding wet-

lands existed on the properties in question. Mr. Ronald

Beebe, a civil engineer testifying for Tull, disagreed. His

opinion that certain filled areas were not within Corps

jurisdiction, however, was based not on the regulatory

definition of wetlands, but on the fact that the developed

sections lay above the high-water mark. The district

court supplemented the extensive expert testimony by con-

ducting a viewing of the filled areas.

The evidence on Fowling Gut Extended showed that the

federal government had spent $30,000 in 1963 for con-

struction of a drainage ditch to control mosquito breed-

ing. One witness testified that boats could travel up this

ditch or canal, at least for a short time, and that it was

subject to the ebb and flow of the tide.

The district court concluded that there was “substan-

tial, credible evidence” that Tull had filled areas “typi-

cally tidal, marsh or bog in character” on all the proper-

ties in question. It found that Fowling Gut Extended

“was navigable in fact and was utilized by boat traffic

subsequent to 1963 and prior to the time when [Tull]

filled in this waterway without applying for or obtain-

ing any permit from the Army Corps of Engineers.”

Concluding that Tull had violated both Acts, the district

court assessed fines of $75,000 for the filling at Ocean

Breeze, Mire Pond, and Eel Creek, and ordered Tull to

restore areas on all three properties to wetlands. For

filling Fowling Gut Extended, Tull was ordered either to

pay a $250,000 fine or to restore the canal “to its former

navigable condition.”

6a

Il.

Whether the Clean Water Act or its Application

Here is Unconstitutional.?

A. The Commerce Clause

Tull argues that the regulation of his property under

the Clean Water Act goes beyond the proper reach of the

commerce clause. The Seventh Circuit rejected this argu-

ment in United States v. Byrd, 609 F.2d 1204, 1210 (7

Cir. 1979). It found that regulating wetlands was justi-

fied by the negative effect that destruction of wetlands

could have on the “biological, chemical, and physical in-

tegrity of the [navigable] lakes they adjoin.” Jd. at 1210.

The Supreme Court has cited this discussion in Byrd with

approval, noting “we agree with the lower federal courts

that have uniformly found the power conferred by the

Commerce Clause broad enough to permit congressional

regulation of activities causing air or water pollution

...+.+ Hodel v. Virginia Surface Mining & Reclamation

Assn., 452 U.S. 264, 282 (1981). We follow these au-

thorities and reject defendant’s argument.

Tull concedes that there is precedent rejecting his com-

merce clause argument. He urges, however, that the

government already litigated this issue against him and

lost, in United States v. Tull, No. 75-319-N slip op. (E.D.

Va. November 12, 1975). We disagree. Collateral estop-

*Tull mete a fifth amendment taking argument in the district

court. It, however, rejected the argument on ripeness grounds,

and Tull has not reasserted this argument on appeal. A Sixth

Circuit panel, we recognize, has narrowly construed the Clean

Water Act’s regulatory definition of wetlands to avoid what it sees

as “a very real taking problem.” United States v. Riverside Bay-

view Homes, Inc., 729 F.2d 391, 398 (6 Cir. 1984), cert. granted,

105 S. Ct. 1166, 84 L. Ed. 2d 318 (1985). Even Riverside’s narrow

construction, however, encompasses the swamp, marsh or bog

adjacent to navigable waters at issue here. 729 F.2d at 398. River-

side would exclude only “inland low-lying areas” from Corps juris-

diction. Jd. at 398, 401.

7a

pel precludes the government from relitigating “the same

issue already litigated against the same party in another

case involving virtually identical facts.” United States v.

Stauffer Chemical Co., 104 S. Ct. 575, 578, 78 L. Ed. 388,

392 (1984). The earlier case against Tull, however, did

not present a virtually identical situation, nor was the

commerce clause issue squarely presented.

In the earlier case, Tull introduced fill without a per-

mit into an area behind a bulkhead. The district court

found that the area was “high and dry most of the time,”

and “would probably see a little flooding for only two or

three hours per month.” It lay above the mean high

water line, and the district court found it “could not

even be said to be ‘periodically’ flooded” within the mean-

ing of the regulation then defining Corps jurisdiction.

See 40 Fed. Reg. 31,320 (1975).* The district court then

suggested in dictum that including land which is “high

and dry, above the average high tide” line within federal

regulation because it might be periodically inundated “is

further than we choose to go.” That decision left open

the auestion whether areas that receive sufficient flooding

or saturation to support plants adapted to “saturated soil

conditions,” and that therefore meet the current defini-

tion of “wetlands,” 33 C.F.R. § 323.2(c) (1984), are

constitutionally subject to federal jurisdiction.

B. Vagueness

Tull argues that the Clean Water Act regulations are

unconstitutionally vague because the imprecise definition

3’ This regulation, now superseded, provided:

Corps jurisdiction would extend to all coastal waters subject to

the ebb and flow of the tide shoreward to their mean high water

mark ... and also to all wetlands, mudflats, swamps and similar

areas which are continguous or adjacent to coastal waters.

This would include wetlands periodically inundated by saline

or brackish waters that are characterized by the presence of

salt water vegetation capable of growth and reproduction ....

8a

of “wetlands” makes it too difficult for landowners to

determine their potential liability. We reject this argu-

ment, as have other courts. See Avoyelles Sportsmen’s

League, Ine. v. Marsh, 715 F.2d 897, 917 (5 Cir. 1983) ;

United States v. Phelps Dodge Corp., 391 F. Supp. 1181,

1187 (D. Ariz. 1975). As applied to this case, the regu-

latory definition of wetlands is sufficiently definite to

give a person of ordinary intelligence fair notice of what

conduct the Clean Water Act prohibits or requires. Cf.

United States v. Harriss, 347 U.S. 612, 617-18 (1954).

ITT.

Whether Tull Had a Right toa Jury Trial

We find no merit in Tull’s claim that he had a right

to a jury trial in this case. The seventh amendment

right to a jury trial is limited to suits in the nature of

an action existing at common law when the amendment

was adopted. Atlas Roofing Co. v. Occupational Safety

and Health Review Commission, 430 U.S. 442, 458

(1977); NLRB v. Jones & Laughlin Steel Corp., 301

U.S. 1, 48 (1937). “. . . Congress may constitutionally

enact a statutory remedy unknown at comomn law, vest-

ing factfinding in an administrative agency or others

without the need for a jury trial.” Republic Industries

v. Teamsters Joint Council No. 83 of Virginia Pension

Fund, 718 F.2d 628, 642 (4 Cir. 1983), cert. denied, 104

S. Ct. 3553, 82 L. Ed. 2d 855 (1984).

Tull urges that he had a right to a jury trial because

the government was seeking civil penalties under the

Clean Water Act. To support this argument, he points to

the Second Circuit’s decision in United States v. J.B.

Williams Co., Ine., 498 F.2d 414 (2 Cir. 1974). The

court there found a seventh amendment “right of jury

trial when the United States sues... to collect a |statu-

tory| penalty, even though the statute is silent on the

right of jury trial.” Jd. at 422-23 (quoting 5 Moore, Fed-

9a

eral Practice { 38.-31[1] at 232-33 (1971 ed.}). In so

holding, the Second Circuit found guidance in several

older Supreme Court cases. Thus in Hepner v. United

States, 213 U.S. 103, 115 (1909), the Supreme Court

suggested in dictum that “[t]he defendant was, of

course, entitled to have a jury summoned” where the

government sued to collect a $1,000 civil penalty for vio-

lation of the Alien Immigration Act. See also United

States v. Regan, 232 U.S. 37 (1914) (dictum regarding

penalty under Alien Immigration Act).

We reject defendant’s argument. First, we note that

the Supreme Court has left open the question whether

the dictum of Hepner and Regan “correctly divines the

intent of the Seventh Amendment,” or whether the sev-

enth amendment has no application to government litiga-

tion at all. Atlas Roofing, 430 U.S. at 449 n.6.

Second, even assuming that the seventh amendment

applies to government litigation, the fact that the govern-

ment is suing to collect statutory penalties does not re-

quire a jury trial. The Supreme Court has not gone “so

far as to say that any award of monetary relief must

necessarily be legal [as opposed to equitable] relief” for

purposes of determining the right to a jury trial. Curtis

v. Loether, 415 U.S. 189, 196 (1974). In Regan (as in

Hepner), the monetary relief sought was a penalty of a

set amount, and the Supreme Court analogized the suit

to “a civil action of debt.” Regan, 232 U.S. at 47. Here

the penalties are within the district court’s discretion;

the government is not suing to collect a penalty analogous

to a remedy at law, but is asking the district court to

exercise statutorily conferred equitable power in deter-

mining the amount of the fine.

Nor are the penalties simply equivalent to punitive

damages in actions at 'aw. Here the assessment of penal-

ties intertwines with the imposition of traditional equi-

table relief. The district court fashions a “package” of

10a

remedies, one part of the package affecting assessment

of the others. This combined relief serves several goals,

including environmental preservation and fairness to

third party property buyers as well as deterrence. In

such cireumstances, the seventh amendment is inappli-

cable. See Jones & Laughlin, 301 U.S. at 48-49, quoted

in Atlas Roofing, 430 U.S. at 453 (seventh amendment

inapplicable where “recovery of money damages is an

incident to [nonlegal] relief even though damages might

have been recovered in an action at law,” since equity

courts historically granted such monetary relief).

IV.

Whether the Government is Equitably Estopped

from Suing Tull

Tull argues that the government is equitably estopped

from obtaining relief because Corps personnel misled him

into believing_that his filling activities were lawful and

did not require a permit. The district court emphatically

rejected this argument, finding that nothing the govern-

ment did or failed to do misled the defendant. We can-

not say this finding was clearly erroneous, and with no

showing that the government misled Tull the equitable

estoppel argument certainly must fail. See Heckler v.

Community Health Services of Crawford County, Inc.,

104 5. Ct. 2218, 2223-24, 81 L. Ed. 2d 42, 51-52 (1984)

(invoking equitable estoppel against government requires

at least a showing that party reasonably relied on gov-

ernment’s misleading conduct). We therefore need not

reach the issue whether misleading by silence or inaction,

the most Tull alleges here, could ever justify invoking

the equitable estoppel doctrine against the government.

Cf. id., 104 S. Ct. at 2224, 81 L. Ed. 2d at 52 (whether

*Thus the fine for filling Fowling Gut Extended was offered

as an alternative to the injunctive remedy of restoring that water-

body to its previous condition.

lla

doctrine applicable to governmert at all an open ques-

tion): United States v. Harvey, 661 F.2d 767, 773-74

(9 Cir. 1981), cert. denied, 459 U.S. 833 (1982) (invo-

eation of doctrine against government requires affirma-

tive misconduct).

Tull complains in particular about a Corps of Engi-

neers’ visit to the Ocean Breeze property in July of 1976.

An engineer told him not to place fill in one part of his

property; Tull claims this instruction led him to believe

that filling without a permit anywhere else on his prop-

erty would be proper. Yet several witnesses testified that

the purpose of the Corps’ visit was to determine whether

ongoing work required filling permits. At the time of

the visit, Tull did not discuss the future development of

the property at issue here with the Corps engineers ;

indeed, he did not yet even have a development plan.

Thus. there did not even exist plans that the engineers

could have tacitly endorsed. Further, Tull’s earlier dis-

putes with the Corps over the filling of property meant

he could not have been ignorant of the general require-

ment of obtaining a permit to fill wetlands.

Tull further complains that the government misled him

by waiting several years before bringing this suit. The

district court found that any such delay did not mislead

Tull. The government sued Tull unsuccessfully in 1975,

issued a cease and desist order against his filling Eel

Creek in 1976, and also obtained an injunction against

his filling at Mire Pond. Given such circumstances, we

eannot overturn the district court’s finding that Tull was

in no way misled by the government’s failure to bring

even more lawsuits against him.°®

5 The dissent, in asserting that the government should be estopped,

adopts Tull’s argument that he followed the Corps’ 1976 directions

in placing fill on his property, while the Corps stood by and watched

in silence until the government brought suit in 1981. The record

establishes, however, that aerial photographs of new filling on

Tull’s property in the summer of 1978 revealed possible statutory

12a

V.

Navigability of Fowling Gut Extended

Tull argues that he did not violate the Rivers and

Harbors Act by placing fill in Fowling Gut Extended,

since no credible evidence supported the district court’s

finding that the waterway was navigable. We disagree.

The district court had before it the testimony of an

oyster inspector who testified that Fowling Gut Extended -

was subject to the ebb and flow of the tide. The Corps’

regulations in effect at the time Tull filled the waterway

defined navigable waters to include those “subject to

tidal action.” 33 C.F.R. § 209.260(k) (2) (1975). super-

seded by 33 C.F.R. § 329.4 (1984) (includes waters

“subject to the ebb and flow of the tide”). See also 33

C.F.R. § 320.8(a) (1984) (“canal or other artificial

waterbody that is subject to the ebb and flow of the tide

is also a navigable water of the United States’). The

district court therefore did not err in finding Fowling

Gut extended navigable.

We do not think that Tull’s other contentions merit

discussion.

AFFIRMED.

violations. Corps personnel then asked for an on-site meeting “to

determine if the shoreline work being done on Mr. Tull‘s property

just south of Beebe Road could be in our regulatory jurisdiction.”

Tull’s lawyer responded by letter that “no work is being done on

the property owned by [Tull] adjoining Fowling Gut at Chinco-

teague Island,” and that the Corps’ request for an on-site meeting

was therefore denied. A Corps scientist testified that at that time

the Corps had information indicating that Tull had violated the law

with respect to Ocean Breeze, but that it took no action because

it lacked sufficient specific data on which to base a cease and desist

order. Its effort to get further information by examining the

property was thwarted. Given this evidence, Tull cannot argue

meritoriously that he was the victim of innocent reliance, or that

following the 1976 visit he had no further word from the Corps

that they had any question about the propriety of his activities.

13a

JUDGE WARRINER, dissenting:

Having had unhappy experiences with the United

States Corps of Engineers respecting alleged encroach-

ment by him on wetlands and navigable waters, appellant

Tull hired a lawyer and a civil engineer to review pro-

posed filling of lowlands owned by Tull near Chinco-

teague. With assurance from the lawyer and the engineer

that his proposals would not cause damage to wetlands

or navigable waters, he then called in representatives of

the Corps of Engineers and took them on a tour of the

sites explaining the nature of the work he proposed.

During the tour he was advised by an appropriate

official of the Corps that a certain proposal could not be

accomplished without damage to wetlands. This oral

directive was confirmed by letter within a few days. Tull

strictly adhered to this direction and to another minor

direction given by an official of the Corps on the scene.

He proceeded with his other plans in accordance with the

advice given him by his lawyer and his civil engineer.

During the next five years while the work was in

progress the Corps of Engineers kept the site under

surveillance both on the ground and by aerial observation

and photographs. They observed over many months plain-

tiff engaging in the fill activity which he had pointed

out to them on the ground on the day of their visit.

After plaintiff had completed his work, with no further

word from the Corps of Enginers that they had any

question about the propriety of his activities, and after

plaintiff had sold off lots in the filled area to third

parties, the Corps of Engineers in the name of the United

States filed this action against Tull seeking injunctive

relief and civil penalties for conducting his activities

without a permit.

Tull, not the Corps, was fined $75,000. Additionally,

extensive and extremely expensive site restoration was

required of him. Tull appeals urging that he was mis-

l4a

treated by the Corps of Engineers. He points to the

equitable doctrine of estoppel.

The Supreme Court has consistently left open the pos-

sibility of estoppel against the government. Though the

Supreme Court found in Montana v. Kennedy, 366 U.S.

308, 314-15 (1961), that inaccurate but “well-meant”

advice given by a consular officer fell “far short of mis-

conduct such as might prevent the United States” from

carrying forward with legal action, the door to estoppel

was left ajar.

The Court found that the sort of “affirmative miscon-

duct” adverted to but not found in Montana, supra,

also was not present in INS v. Hibi, 414 U.S. 5, 8

(1973). In that case the alleged misconduct of the gov-

ernment was in not aggressively publicizing immigra-

tion rights created by Act of Congress and in not sta-

tioning an authorized naturalization official in the Philip-

pines during the statutory period following World War

II. Still, the legal possibility of estoppel against the

government was recognized. Id.

A government agent who failed to respond accurately

to a citizen’s verbal question in a fifteen minute interview

was found to have not acted with sufficient “affirmative

misconduct” to estop the government. The instructions he

failed to comply with were contained in a claims manual,

a volume containing help and guidance but not carrying

the weight of law. Schweiker v. Hansen, 450 U.S. 785

(1981). Yet the possibility of a government agent con-

ducting the government’s business in a sufficiently preju-

dic‘al manner as to estop the government from future

legal action was again left open. Jd. at 780.

Heckler v Community Health Services of Crawford

City, Inc., 104 S. Ct. 2218 (1984), involved a provider of

health care that had relied on policy determinations mad¢

by a fiscal intermediary. The health care provider, ex-

perienced with government financial programs, knew or

l5a

should have known to verify with the applicable govern-

mental department the information received. Thus the

inaccuracy of the information given did not estop the

government in legal action. Jd. at 2223.

All of these denials of estoppel left open its possibility.

The case at bar can be distinguished from each on its

facts. Schweiker and Montana were both cases of brief,

one-time encounters with officials who gave cryptic, verbal

advice. By contrast, Mr. Tull, after extensive research

by his own agents, initiated a tour and inspection of his

property with the specific intent of gaining a ruling

from a team of officials from the Corps of Engineers

who possessed the requisite knowledge. The Corps con-

tinued to monitor the construction site for the next five

years.

Mr. Tull is not in the position of Mr. Hibi. He did

not ask «he government to expend strenuous efforts to

inform him of the law. Tull hired a lawyer and an

engineer and went to the trouble of arranging an inspec-

tion to confirm his understanding of the law; and then

complied with it as presented to him. He did not ask his

questions ofvan intermediary as did Community Health

Services of Crawford City, Inc. He went straight to the

proper governmental! authority in his area.

The Supreme Court has stated that for estoppel to lie

against the government the private party must at least

show “the traditional elements of an estoppel.” Heckler,

104 S. Ct. at 2224. It explicitly included reasonable

reliance. Jd. at 2223.

Summarizing the traditional notion of equitable estop-

pel the Ninth Circuit identified four essential elements.

They are “(1) The party to be estopped must know the

facts; (2) He must intend that his conduct shall be acted

on or must so act that the party asserting the estoppel

has a right to believe it is so intended; (3) The latter

must be ignorant of the true facts (sic.); and (4) He

l6a

must rely on the former’s conduct to his injury.” Cali-

fornia State Board of Equalization v. Coast Radio Prod-

ucts, 228 F.2d 520, 525.’ Modifying element (4) to read

“he must reasonably rely on the former’s conduct to his

injury” yields a test well within the Supreme Court’s

standard. Heckler, 104 S. Ct. at 2223, 2224.

The case at bar fits all the elemen.s of equitable estop-

pel. Respecting element one, the Corps certainly knew

the facts. Its agents were invited to Mr. Tull’s property

as work commenced, toured the property, and received a

description of the intended work. Though firm drawings

were not available for review, the object of the inspection

as presented by Mr. Tull was to reach an understanding

of the limits of the Corps’ interest in the property. Cer-

tainly the actions of the inspection party in touring all

the properties and not just one site reinforces this. It is

undisputed that Tull did no more than he said he planned

to do and that the work found by the Corps to be viola-

tive of the law was the planned work—obvious to the

Corps over the course of five years’ surveillance. It had

to have been obvious to the Corps many times between

July 1976 when the inspection was conducted and July

1981 when the complaint was filed that Mr. Tull was

engaged in the work he had explained to the Corps

officials. The Corps’ agents conducted follow-up inspec-

tions, wrote internal memos, and recorded work progress

with aerial photography. All attests to their knowledge.

As to element two, if Mr. Tull didn’t have the right

to believe and rely upon the Corps officials then there

simply can’t be a case where element two is met. He did

what could reasonably be expected to make it clear that

he intended to build pursuant to his own experts’ opinions

unless the Corps raised some objection. The Corps did

not object to the purpose of the requested inspection.

1 See also United States v. Georgia-Pacific Co., 421 F.2d 92, 96

fn. 4 (1970) and 28 Am. Jur.2d, Estoppel and Waiver, § 27 (1966).

17a

Significantly, wholly consonant with Mr. Tull’s stated

expectations and consistent with his purpose, Corps offi-

cials forbade certain construction work. Mr. Tull fully

complied with the Corps’ instructions. The Corps should

not be permitted to pretend that it didn’t know what

was intended by Mr. Tull and by the Corps officials when

the inspection was requested and conducted.

The “true fact” of which Mr. Tull was ignorant was

that the measures he had taken to ascertain the Corps’

interest in his property were inadequate. He believed

he had achieved an understanding with the appropriate

officials of the Corps of Engineers. He was ignorant of,

and reasonably so, the “true facts” as purported five

years later by the Corps that he had only obtained a

ruling on one particular piece of the whole work.

Finally, I differ with the majority and find clear error

in the trial court’s ruling that no action or inaction. by

the Corps misled Mr. Tull. I would find that he did

reasonably rely on the combination of actions and inac-

tions by the Corps. Indeed, until I read the holding in

this case I would have held it would be unreasonable for

Mr. Tull not to rely on the United States Army Corps of

Engineers. Both I, and Mr. Tull, know better now. As

evidenced by the outcome of the trial he certainly relied

to his injury.

Were this a case between two private parties the in-

quiry into estoppel could end here. I think Tull would

win hands down. However, as reviewed earlier, estoppel

against the government is justifiably eyed warily. Justice

Rehnquist wrote a concurring opinion in Heckler, 104

S. Ct. at 2228, to refute any “impression of hospitality

towards claims of estoppel against the government” that

the majority’s opinion might have left. He concluded

that “our cases have left open the possibility of estoppel

against the government only in a rather narrow possible

range of circumstances.” /d.

18a

I believe the circumstances of this case lie within that

narrow range. The actions and nonactions of the govern-

ment agents involved were so far removed from effec-

tively carrying out their duty as to show active efforts

to mislead Mr. Tull to his detriment. They were “out

to get him.” The record supports a suspicion of inten-

tional malice. In possession of all the facts the Corps

waited until after lots were sold, when the most harm

could be done, to file suit. With full authority to do so,

the Corps refused to issue a cease and desist order as

their controlling regulation, carrying the weight of law,

required. Fed. Reg. Vol. 40, No. 144, 25 July 1975,

p. 31330, Addendum “C.” The guardians of the nation’s

wetlands eschewed diligence for trickery.

Although typically inaction on the part of the govern-

ment would not just’fy reliance, or bring about estoppel,

the inaction consequent upon the inspection tour, the

research done by Mr. Tull’s agents, and the surveillance,

permit Mr. Tull reasonably to conclude approval. Hence,

I am not proposing to “punish” the Corps for mis-, mal-

or nonfeasance by allowing Mr. Tull to break the law.

Rather, I urge the application of estoppel on behalf of a

citizen who made a reasonable and good faith effort to

discover the law and how it applied to him and has been

severely damaged by reasonably relying on the combina-

tion of actions and nonactions of government officials,

the latter in gross neglect of duty.

The Ninth Cireuit found in Sun Il Yoo v. Immigration

and Naturalization Service, 534 F.2d 1325 (1975), “af-

firmative misconduct” on the part of the government

sufficient to estop it in relation to an alien who had acted

in good faith. The Court found no acceptable reason for

a delay of ten months in processing information provided

by the alien. The delay made Mr. Yoo ineligible for a

visa because of a change in the law that occurred while

the INS procrastinated unjustifiably on his application.

Mr. Yoo was fully eligible under the law as it stood

19a

when he applied. The Ninth Circuit found that “[bly

its maneuvers . . ., the INS [had] ensnared petitioner

in a ‘Catch 22’ predicament; the Service’s conduct is

analogous to the entrapment of a criminal defendant

and, as such, cannot be countenanced.” Jd. at 1328-29.*

Mr. Tull’s case is even more easily a source of offended

decency than Mr. Yoo’s. The actions of the Army Corps

of Engineers gives the appearance of lying in wait with

a calculating eye for five years after first lulling him

into a reasonable view that his activities were acceptable;

and after he invested time, money, and effort in com-

pleting what he thought to be suitable residential lots,

the Corps with a bulging portfolio of evidence descended

on him. For the foregoing reasons I would apply estoppel

and reverse the trial court’s decision.

Turning now to the question of defendant’s right to a

jury trial, I disagree with the majority and find error

in the trial court’s denial of Mr. Tull’s demand for trial

by jury.

33 U.S.C. §1319(b) authorizes the government to

bring civil actions in a federal district court to obtain

appropriate relief, including typical equity relief, for any

violation of specified sections of the Clean Water Act, 33

U.S.C. §§ 1251, et seg. In addition, Section 1319(d)

provides for the imposition of a fine under the denomina-

tion of a civil penaity. Under subsection (d) the trial

court imposed a $75,000 civil penalty without the benefit

of a jury’s judgment and with this I disagree.

* An Arizona district court applied the “affirmative misconduct”

interpretation of Sun Il Yoo to a case in which a lawyer was hired

by the government, a hiring freeze was put into effect, the lawyer

was informed upon inquiry the freeze would not affect his position,

the lawyer closed out his private practice in reliance on the assur-

ance and was then denied the job. The district court applied

estopel against the government. Beacom v. Equal Employment Op-

pgertunity Commission, 500 F. Supp. 428 (1980).

20a

The Supreme Court held in Curtis v. Loether, 415 U.S.

189 (1974), that the collection of $250 in punitive dam-

ages pursuant to a statutory right created by § 812 of

the Civil Rights Act of 1968, 42 U.S.C. § 3612, was an

action at law that implicated Seventh Amendment rights

to trial by jury. The Court specifically rejected the argu-

ment that the Seventh Amendment was not applicable to

new causes of action created by congressional enactment

and reiterated its ruling that the Seventh Amendment

applies to causes of action based on statutes. Jd. at 193,

citing Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477

(1962). “Whatever doubt may have existed should now

be dispelled. The Seventh Amendment does apply to

actions enforcing statutory rights, and requires a jury

trial upon demand, if the statute creates legal rights and

remedies.” Jd. at 194. Legal rights are those recogniz-

able at law as opposed to equitable rights which are

recognizable only at equity. Ballentine’s Law Dictionary

720 and 411 (3d Ed. 1969).

Explaining the meaning of NLRB v. Jones & Laughlin

Steel Corp., 301 U.S. 1 (1937), the Curtis court declared

that Jones v. Laughlin gave no help to a party attempt-

ing to block a jury trial when statutory rights are at

issue. “Jones & Laughlin merely stands for the propo-

sition that the Seventh Amendment is generally inappli-

cable in administrative procedings, when jury trials

would be incompatible with the whole concept of adminis-

trative adjudication and would substantially interfere

with the NLRB’s role in a statutory scheme.” Curtis

at 195. The Court then discusses similar reasons for

rejecting Seventh Amendment rights in bankruptcy pro-

ceedings and continues “but when Congress provides for

enforcement of statutory rights in an ordinary civil

action in the district courts, where there is obviously

no functional justification for denying the jury trial

right, a jury trial must be available if the action involves

rights and remedies of the sort typically enforced in an

action at law.” Id.

2la

Continuing, the Supreme Court found punitive damages

sued for under § 812 of the Civil Rights Act of 1968

to be “legal rights.” “Damage action under the statute

sounds basically in tort—the statutory remedy defines a

new legal duty... .” Jd. “. .. this cause of action is

analogous to a number of tort actions recognized at

common law. More important, the relief sought here—

actual and punitive damages—is a traditional form of

relief offered in the courts of law.” Jd. at 195-6.

As noted, and relied on, by the majority, the Court

then states that all monetary relief is not legal relief.

But the Court continued by “sharply” contrasting an

equitable award of backpay in a Title VII case “with

§ 812’s simple authorization of actual and punitive dam-

ages.” Jd. at 197. Further analyzing damages arising

from statutory rights the Court reasoned, “nor is there

any sense in which the award here can be viewed as

requiring the defendant to disgorge funds wrongfully

withheld from the plaintiff. Whatever may be the merit

of the ‘equitable’ characterization in Title VII cases,

there is surely no basis for characterizing the award of

compensatory and punitive damages here as equitable

relief.” Id.

I place no stock in the difference in nomenclature

between the “civil penalty” of the present case and the

“nunitive damages” in Curtis. Both arise from a right

created by statute. Both deprive defendant of money by

action of court as a result of a breach of the civil law.

Both are remedies typically found at a court of law.

Neither can be “viewed as requiring a defendant to dis-

gorge funds wrongfully withheld.” In neither case is

there a functional justification to deny a jury trial. The

majority simply accepted the phrase from Curtis out of

context, as the government invited us to do in its brief,

and decided the jury question wrongly.

It should be noted that both Hepner v. United States,

213 U.S. 103 (1909), and its follow-up, United States v.

22a

Regan, 232 U.S. 87 (1914), which the majority unsuc-

cessfully seeks to distinguish, were decisions settling a

debate over whether penalties in the form of so-called

civil fines transformed a civil case into a criminal one.

The answer was no. Neither case purports to comment

on the issue at hand; whether civil penalties may be im-

posed under the pseudonym of “equitable relief.” Both

these cases were tried before juries. The Hepner court,

presupposing a jury, was concerned with making it clear

that a judge could direct a verdict if it came out at

trial that there were no facts in dispute. Explicitly

restricting its decision to civil cases with undisputed

testimony, the court said, “the defendant was, of course,

entitled to have a jury summoned in this case, but that

right was subject to the condition, fundamental in the

conduct of civil actions, that the court may withdraw a

case from the jury and direct a verdict according to the

law if the evidence is uncontradicted and raises only

a question of law.” Hepner, 213 U.S. at 110.

The majority observes that there was a statutory limit

($1.000) on the fine imposable in Hepner and Regan and

that the fine imposable against Mr. Tull was unlimited.

This, the majority argues, supports a view that the

defendants in Hepner and Regan were entitled to a jury

while Mr. Tull was not. One would think just the oppo-

site would be the more persuasive argument. Surely if

the Seventh Amendment protects one from a civil fine

of $1,000, it should be construed to protect one from a

civil fine of $75,000 or an unlimited fine. Cf. 42 U.S.C.

$ 1995: United States v. Martinez, 686 F.2d 334 (5th

Cir. 1982); Codispoti v. Pennsylvania, 418 U.S. 506, 512

(1974).

Regan and Hepner, then, support Mr. Tull’s right to

trial by jury. Language in these opinions which may

appear to the contrary deals only with situations where

there is no genuine dispute as to a material fact.

23a

A trial judge’s unlimited discretion in meting out fines

and imprisonment to contemnors of his court has long

been recognized as an essential element of his authority

to maintain the order, respect, and dignity of the court.

Indeed, the ability to punish for contempt is deemed

essential to the maintenance of our courts as functioning

tribunals.

Precedent held that the authority to punish for con-

tempt was so essential to the maintenance of our judicial

system, the bedrock of the rule of law, that trial by

jury could not be permitted to interfere with the deter-

mination of punishment by the judge. Bloom v. Illinois,

391 U.S. 194, 208 (1968). Upon reviewing the need for

unfettered judicial power to maintain the dignity of the

court against the contempt defendant’s right to a jury,

the Supreme Court in Bloom®* opted for trial by jury.

This upsetting of precedent and the recognition of the

right to a jury trial despite the serious, even funda-

mental, considerations to the contrary, shows the strength

of our Constitution’s* demand that the right to trial

by jury be not infringed.

If in contempt proceedings the weighty considerations

counseling against jury intervention are set at naught

3“fI]n our judgment, when serious punishment for contempt

is contemplated, rejecting a demand for jury trial cannot be squared

with the Constitution or justified by considerations of efficiency or

the desirability of vindicating the authority of the court.” “We do

not deny that serious punishment must sometimes be imposed for

contempt, but we reject the contention that such punishment must

be imposed without the right to jury trial.” “When a serious

contempt is at issue, considerations of efficiency must give way

to the more fundamental interest of ensuring the even-handed exer-

cise of judicial power.”

Bloom, 391 U.S. at 208, 209.

If the instant action be considered civil, the Seventh Amend-

ment requires a jury If, despite, Hepner, supra, the imposition of a

| penalty” of $75,000 be considered criminal, the Sixth Amend-

ment requires a jury.

24a

against the right to a jury trial, how much more is the

strength of the right when weighed against statutory

protection of wetlands. Wetlands are ecologically essen-

tial. The dignity of the courts is essential to our very

freedom. Surely, if trial by jury is constitutionally de-

manded despite the need to maintain our court system,

it is also demanded despite the need to maintain our

wetlands.

The majority infers that the right to jury trial is

limited by a party’s ability to fit his cause into a rela-

tively constrictive box. The majority says, “the Seventh

Amendmant right to a jury trial is limited to suits in the

nature of an action existing at common law when the

amendment was adopted.” Majority Opinion at 9-10.

While the statement is true as far as it goes, the Supreme

Court has found cause to ever expand what might be

included in “the nature of an action existing at common

law when the amendment was adopted.” In fact the

Supreme Court has stated that “in the federal courts

equity has acted only when legal remedies were inade-

quate, the expansion of legal remedies provided by [an

act of Congress] and the Federal Rules [of Civil Pro-

cedure] necessarily affects the scope of equity.” Beacon

Theatres, Inc. v. Westover, 359 U.S. 500, 509 (1959).

It is the equity judge’s discretion whose borders are

limited by the right to a jury trial, and not the reverse

as the majority would have it. See generally Wright &

Miller, Federal Practice & Procedure, Federal Rules of

Civil Procedure, Vol. 9, § 2302 (1971). [“If a new cause

of action is created by Congress, and nothing is said

about the mode of trial, the courts must look to the near-

est historical analogy to decide whether there is a right

to a jury.” “[{A] series of [Supreme Court] cases de-

cided since 1959 .. . recognize that there is a strong

federal policy favoring trial by jury of issues of fact.

This policy by itself may provide the answer in cases in

which the historical test gives no clear guidance.” “At

25a

a minimum the Beacon Theatres and Dairy Queen cases

lend impetus toward finding a right to trial by jury in

doubtful cases. It is highly probable that they do much

more than this.” “In its decisions since 1962 the Court

has shown no inclination to retreat from this judgment

that jury trial is now more widely available than it had

been in the past.’”’] [footnotes omitted. ]

83 U.S.C. §1319(b) provides for all usual equitable

remedies to be available to the government because there

is no good substitute for telling a polluter to cease and

restore, and to do so immediately. The civil penalty of

subsection (d) is another matter entirely. There simply

is no justification for denying trial by jury before the

imposition of a fine that could devastate a person of

even moderate means and could seriously damage all but

a small percentage of the citizenry of this nation. Most

of us just aren’t rich enough to pay a $75,000 fine with

out flinching. Before having such punishment inflicted

our Constitution and our heritage demands that the facts

be presented to a jury of our peers.

Since the remedies sought by the government were

both legal and equitable, and the district court may hear

both at one time, Fed. R. Civ. P. 1, 2, 18, and the findings

of fact necessary to determine what civil penalties, if

any, would be adjudged are the same as those to be

decided for the equitable remedies sought, the case should

have been heard before a jury upon the defendant’s de-

mand. Beacon Theatres, Inc., 359 U.S. at 506-510.

Therefore, on the issue of jury trial alone, the case

should be reversed and remanded for a new trial. On

the issue of equitable estoppel the case should be reversed

and dismissed.

I respectfully dissent.

26a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1766

UNITED STATES OF AMERICA,

1 Appellee,

versus

EDWARD LUNN TULL,

Appellant.

[Filed Oct. 30, 1985]

Appeal from the United States District Court

For the Eastern District of Virginia, at Norfolk,

Robert G. Doumar, District Judge.

The appellant’s petition for rehearing and suggestion

for rehearing in bane were submitted to this Court. In

a requested poll of the Court, Judges Russell, Widener,

Ervin, Chapman and Judge Warriner, United States

District Judge, sitting by designation voted to rehear the

case in banc; and Judges Hall, Phillips, Murnaghan,

Sprouse, Sneeden and Chief Judge Winter voted against

rehearing the case in bane. As a majority of the judges

voted to deny rehearing in banc, and

As the panel considered the petition for rehearing

and is of the opinion that it should be denied,

27a

IT IS ADJUDGED AND ORDERED that the petition

for rehearing and suggestion for rehearing in banc are

denied.

Entered at the direction of Chief Judge Winter, with

the concurrence of Judge Sneeden. Judge Warriner

dissents.

For the Court,

s/ John M. Greacen

Clerk

28a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 84-1766

UNITED STATES OF AMERICA,

Appellee,

versus

EDWARD LUNN TULL,

Appellant.

[Filed Nov. 4, 1985]

Appeal from the United States District Court

for the Eastern District of Virginia, at Norfolk.

Robert G. Doumar, District Judge

The appellant’s petition for rehearing and suggestion

for rehearing in bane were submitted to this Court.

On the question of rehearing before the panel, Judge

Warriner, United States District Judge, sitting by desig-

nation, voted to rehear the case. Chief Judge Winter

and Judge Sneeden voted to deny.

In a requested poll of the Court on the suggestion for

rehearing in banc, Judges Russell, Widener, Ervin and

Chapman voted to rehear the case in banc; Chief Judge

Winter and Judges Hall, Phillips, Murnaghan, Sprouse

and Sneeden voted against in banc rehearing.

9a

As the panel considered the petition for rehearing and

is of the opinion that it should be denied, and as a ma-

jority of the active circuit judges voted to deny rehearing

in bane,

IT IS ADJUDGED AND ORDERED that the petition

for rehearing and suggestion for rehearing in banc are

denied.

Entered at the direction of Chief Judge Winter.

For the Court,

s/ John M. Greacen

Clerk

30a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

Civil Action No. 81-688-N

UNITED STATES OF AMERICA

Vv.

EDWARD LUNN TULL.

OPINION AND ORDER

This matter came on for a trial by the Court sitting

without a jury.

The gove:nment filed its original complaint on July 1,

1981. On April 2, 1982, the government amended its

complaint. During the course of the trial, the govern-

ment sought leave to amend its complaint again. Leave

was granted, and on October 5, 1982, the government’s

second amended complaint was filed.

In claim (1) of the second amended complaint, the

government charged that between July 1975 and the

present, the defendant, without benefit of a permit is-

sued by the United States Army Corps of Engineers,

discharged pollutants, namely fill material, into wetlands

adjacent to navigable waterways known as Fowling Gut

and Black Point Drain. These alleged wetlands were

located on properties collectively referred to as Ocean

Breeze Subdivisions and specifically referred to as Ocean

Breeze Mobile Home Sites, Ocean Breeze Mobile Home

8la

Sites Section B and then Section C. (Section C is shown

on the plat of Section B and the three Sections are shown

on Exhibits 55A and 55B).

Similar allegations were set forth by the government

in claim (2) of its most recent amended complaint.

Claim (2) states that sometime between September 28,

1977 and November 14, 1980, the defendant, again with-

out benefit of a permit, discharged fill material into wet-

lands located on the Mire Pond Camper Sites I and II.

The wetlands referred to in claim (2) were likewise

alleged to be adjacent to Fowling Gut.

In claim (3) of the amended complaint, the government

alleges that the defendant discharged pollutants into wet-

lands adjacent to Eel Crek, another navigable waterway

for the island of Chincoteague. Once again, it is alleged

that the defendant failed to apply for a permit prior to

placing fill material on the lescribed wetlands.

The government asserts that in filling of the wetlands

without a permit the defendant has org the require-

ments of the Clean Water Act. 33 U.S.C. §§ 1311, 1844

and 1362(7). Relief is sought ci to 33 U.S.C.

§$ 1319.

In its second amended complaint, the government fur-

ther charges that the defendant filled a navigable water-

way of the United States, namely an extens sion of Fowling

Gut. which at one time traversed through Ocean Breeze

Mobile Home Sites. The government claims that this

extension of Fowling Gut was filled, blocked and closed

by the defendant without the aut horization of the Secre-

tary of the Army and recommendation of the Chief of

Engineers. Relief is sought pursuant to 33 U.S.C.

$§ 406; 1319.

The defendant has denied liability on all counts. Addi-

tionally, the defendant has raised several affirmative

defenses which will be hereinafter discussed in detail.

32a

A lengthy trial before the Court thus ensued. Based

upon the factual findings and legal conclusions embodied

within this opinion, judgment will be entered for the

United States of America.

I.

A long time inhabitant of Chincoteague, defendant Tull

is actively engaged in the business of filling and develop-

ing residential resort properties on the island. In this

action, the Court shall only concern itself with Mr. Tull’s

alleged activities on the properties commonly known as

Ocean Breeze Mobile Home Sites, Ocean Breeze Mobile

Home Sites Section B, Ocean Breeze Mobile Home Sites

Section C, (all of which comprise the Green Breeze

Subdivision), Mire Pond I, Mire Pond II (both of

which comprise Mire Pond), Eel Creek (not yet sub-

divided into lots) and a body of water hereinafter

sometimes referred to as “Fowling Gut extended”.' A

brief general description of these properties will provide

the backdrop for the analysis of Mr. Tull’s alleged activi-

ties thereon.

The Ocean Breeze Mobile Home Sites are located on the

Southwestern portion of Chincoteague Island, Virginia.

They lie southeast of Chincoteague Channel and north-

west of Black Point Drain and Assateague Channel.

(See Exhibit 10). Portions of Ocean Breeze Mobile Home

Sites abut Fowling Gut and lie atop what is Fowling

Gut Extended, a winding navigable waterway which feeds

into Chincoteague Channel to the west and into Andrews

Landing Gut to the south. On Exhibit 10 Ocean Breeze

Mobile Home Sites is circled and lies approximately at

the letter “g” of the word “Fowling” and proceeds north-

easterly atop said waterway approximately 1000 feet.

1 This has been referred to as a “canal” or waterway but is dis-

tinguished from “The Canal” shown in Exhibit 10 which is the

main channel from Chincoteague Channel to Assateague Channel

(See Exhibit 10).

33a

An extension of Ridge Road, Virginia State Route

2102, traverses Ocean Breeze Mobile Home Sites in a

southwesterly direction. Initially Ridge Road only ex-

tended into the property immediately adjacent to and

east of what is now the subdivision of Ocean Breeze

Mobile Home Sites and was the only public road which

served the subdivision. A service road built and main-

tained by the defendant Tull, now bounds the Ocean

Breeze subdivision to the south, and is referred to on

one plat as “Bunker Hill Campground Road” *, which

road was filled in by Mr. Tull. As is shown on a regis-

tered survey plat (Ex. 55A) prepared by Mr. Ralph

Beebee, the following lots are situated and have been

developed to the northwest of Ridge Road and to the

south of what is left of a portion of Fowling Gut (and

a 50 foot wide reserved right of way which runs through

the top or northeastern portion of the subdivision): Lots

23-70, 120-121; Drain Field Lots 23-38, 39-54, 54-70;

and several lots denominated as Future Drain Field Lots.

To the southeast of Ridge Road the following Ocean

Breeze Mobile Home Sites lots are shown on the survey

plat: Lots 1-22, 71-119 and six lots denominated as

Future Drainfield sites.

Ocean Breeze Mobile Home Sites and Ocean Breeze

Mobile Home Sites Section B (Ex. 55B) are separated by

a lane approximately 22 feet wide which is designated

on the defendant’s subdivision plats as “Drainage Ease-

ment.” In actuality, a very narrow ditch approximately

two feet wide is located within this area. The following

lots comprise Ocean Breeze Mobile Home Sites Section B:

Lots 1B-78B, inclusive. Ocean Breeze Mobile Home Sites

Section C borders Ocean Breeze Mobile Home Sites Sec-

tion B to the northeast. At present Ocean Breeze Mobile

Home Sites Section C is composed of four 50 foot by 100

foot lots; 8C, 9C, 10C and 11C and one 80 foot by 100

2 Bunker Hill Campground is another development of Mr. Tull

not at issue in this lawsuit.

34a

foot by 100 foot lot; 7C is shown on the same plat as

Ocean Breeze Section B.

Sea Shore Drive bounds those numbered lots developed

on Ocean Breeze Mobile Home Sites Section B to the

southeast. Between Sea Shore Drive and Bunker Hill

Campground Road lie three unnumbered lots which are

designated as drainfield lots. To the west of the sub-

division of Ocean Breeze Mobile Home Sites B was an

undeveloped area which, at the time of the Court’s Sep-

tember 1982 view of the property, gave the appearance

of a swamp or a bog.

With the exception of a few drainfield lots, the ma-

jority of lots in Ocean Breeze Mobile Home Sites measure

50 feet by 100 feet. In Ocean Breeze Mobile Home Sites

Section B, most lots likewise measure 50 feet by 100 feet.

Some of the lots adjoining Sea Shore Drive in Ocean

Breeze Mobile Home Sites are irregular in shape and

are slightly larger than the standard 50 foot. by 100 foot

lot dimensions.

Ingress and egress within the Ocean Breeze Subdivi-

sions are provided through Sea Breeze Drive, Sea Gull

Drive, Sea Shell Drive, Sea Spray Drive and Sea Horse

Drive, roadways which run in a northwesterly direction

and generally perpendicular thereto are Ridge Road Ex-

tended and Sea Shore Drive, all of which were developed

by defendant Tull from 1975 onward. Approximately

150 feet to the south of and parallel to Sea Shore Drive

is Bunker Hill Campground Road.

The defendant claims to have owned all the lots in

Ocean Breeze Subdivisions. At various intervals, begin-

ning in 1975, and continuing until the present, the de-

fendant either leased or sold these lots in Ocean Breeze

to third parties, many of whom have placed mobile homes

on their parcels. Defendant Tull is currently involved

in a separate lawsuit with regard to the title to some

of the area in the Ocean Breeze subdivision, pout for

2

35a

his Court’s purposes, that litigation is not material to

this lawsuit. As of the date of trial, Lots 4, 14, 19, 64,

65. 66. 67. 68, 69, 70, 74, 76, 96, 97, and 106 were still

wwned by the defendant. Currently, the defendant also

owns lots 7C. 8C, 9C, 10C, 11C, 11B and the drainfield

lots. The defendant realized approximately $5,000 net

profit per lot for the sales of the lots in Ocean Breeze

Mobile Home Sites.

Mire Pond I and Mire Pond II Camper Sites are

located a few miles northeast of the Ocean Breeze Mo-

bile Home Sites. The Mire Pond properties also lie east

of Chincoteague Channel. Fowling Gut borders the Mire

Pond properties to the west. Virginia State Route 2102

abuts Mire Ponds I and II to the east. (See Ex. 116

which shows both sections).

Mire Pond I consists of twenty-nine smaller sized and

sometimes irregularly shaped lots, suitable for the place

ment of camper trailers. At no time material to this

action did the defendant own the lots in Mire Pond I.

Although the present owners of the lots in Mire Pond I

purchased their properties directly from the defendant’s

parents, wio were the then title holders to those prop-

erties, the defendant played the instrumental and para-

mount role in the development and sale of the lots located

in Mire Pond I and otherwise dealt with them as his own

Mire Pond II adjoins Mire Pond I to the northeast.

It is composed of twenty-five lots. At one point, the

defendant owned all the land comprising Mire Pond II.

Lots l(a), 6(a), Tla), 8a), 9la), 10(a), Illa),

12(a), 13(a), 14(a), 15a), 16(a), 19(a), 20(a),

91(a),. 22(a), and 25(a) are presently owned by the de-

fendant. A preliminary injunction issued by this Court

at an earlier date, which currently remains in full force

and effect, prohibits the defendant from conducti: ¢ any

filling activities whatsoever on Mire Pond II. The defend-

ant and those for whom he acted recognized approxi-

36a

mately $5,000 net profit per lot for the sale of lots in

Mire Pond I, as well as Mire Pond II.

The third property involved in this lawsuit, Eel Creek,

lies west of Assateague Charnel and Piney Island and

flows into Little Oyster Bay. Chicken City Road is to

the west of the Eel Creek property, with the Eel Crek

waterway itself, abutting the land to the east. The High-

land Park Development projects bounds the subject prop-

erty to the northwest and the Donald Birch property to

the southeast. On Exhibit 58 the property identified as

“Edward L. Tull” has been split by a road owned by

Tull which runs down the middle thereof from Chicken

City Road to Eel Crek. The northeastern side of the road

is still owned by Tull, a portion of which is in contention

in this litigation. The southwestern side of the road is

owned by Donald Birch. Although the Donald Birch

land was filled by Tull, it is not in contest herein nor has

the United States made the new road a part of this liti-

gation. |

The defendant owned the described property at Eel

Creek. At trial, he testified that at present there exists

pending contracts for the sale of certain parcels. The

defendant has traded with Donald Birch one-half of his

Eel Creek property which is further upstream from Little

Oyster Bay. Others (specifically including William M.

Birch and the government—highway department) have

also obtained rights along Eel Creek which are further

upstream.

Asserting a special grant from the sovereign, the de-

fendant also claims ownership to the bottom of Ee! Creek

itself. The evidence, however, failed to show an unbroken

chain of title spanning from an original special grant of

Eel Creek by the sovereign to the defendant. Nonetheless,

even though the defendant may have acquired rights to

the other side of Eel Creek, he could not extinguish the

publie’s rights to the waterway, nor those of others who

are upstream. Nor can he extinguish the rights of the

United States to its navigable servitude.

37a

The defendant now owns or at one time owned three

dump trucks, a front-end loader and a tractor equipped

with grading blade. Additionally, the defendant owns

and maintains a borrow pit from which vast amounts of

fill material were taken and hauled to the subject prop-

erties.

On July 21, 1976, several members of the Norfolk Dis-

trict Army Corps of Engineers visited the defendant’s

properties on the island of Chincoteague in order to de-

termine the “Corps’ jurisdiction” as to any filling activity

to be conducted thereon. Although the Chief of the per-

mitting section was not present at this meeting, his im-

mediate subordinate, one Caruthers, was present. For

most of the inspection, the defendant was also present.

After briefly viewing a site not at issue in this litiga-

tion, the group proceeded to the Ocean Breeze Mobile

Home Sites. They approached Ocean Breeze Mobile Home

Sites from the Northwest corner (Lots 1-2; 23-30) of the

property and proceeded toward Fowling Gut. Caruthers

noticed what he believed were wetlands adjacent to a

filled area in the Northwest corner and advised the de-

fendant that he would need a permit to fill that area.

Thereafter Caruthers walked in a southerly direction

across the filled area. The defendant remained in the

northwest corner of Ocean Breeze Mobile Home Sites. No

further conversation was had between members of the

Corps and the defendant. The defendant at no time in-

quired of anyone as to whether he would be allowed to

fill in the southern or western portions of Ocean Breeze

Mobile Home Sites without first obtaining a permit.

Nor has the defendant acquired nor ever applied for a

permit.

The group then viewed the Eel Creek Site. Apparently

no conversation was had between the members of the

Corps and the defendants during the group’s visit to the

Eel Creek property. Prior to this visit, however, a formal

38a

notice was sent by the Corps to the defendant on March

8, 1976, ordering the defendant to “cease and desist all

further filling in Eel Creek or its wetlands until such

time as you [the defendant] have obtained Department

of the Army permit.” On August 25, 1976, a follow-up

letter from Colonel Newman Howard indicated that the

cease and desist order would remain in effect, that deci-

sion having been confirmed by the July 21, 1976 visit to

the Eel Creek site.

From 1978 through 1982, James and Donald Ballard

worked almost exclusively for the defendant. Apart from

some minor repair work and grass cutting duties, the

Ballards devoted virtually all their time to the operation,

service and maintenance of the defendant’s hauling, load-

ing and grading equipment. They were hired to haul

sand to Ocean Breeze Mobile Home Sites.

Another independent haules, one Alexander J. Justice,

also hauled sand to the Ocean Breeze Mobile Home Sites

for the defendant. Justice was paid for at least thirty-

four days of hauling.

An aerial photograph of the Ocean Breeze Mobile Home

Sites area shows the lots west of Ridge Road (Lots 23-

70) were undeveloped as of November, 1975. This photo-

graph shows filling on Lots 1-22 and Lots 93-104. There

was, however, no filling on what are now Lots 71-92

and/or Lots 115-119.

The defendant testified that he filled Ocean Breeze

Mobile Home Sites_Lots 1-22 in 1974-75, filled Lots 104-

114 in 1975-76, filled Lots 93-103 in 1975-76, and that

filling on Lots 82-92 commenced sometime during 1976-

77 and continued through 1979. Filling on Ocean Breeze

Mobile Home Sites Section B began in 1976 and con-

tinued through 1979. Filling on Ocean Breeze Mobile

Home Sites Section C occurred in 1979-80. A _ revision

to the defendant’s 1975 survey plat (Ex. 55A) indicates

that Lots 120-121 were developed sometime between 1978

39a

and 1979. According to the defendant, the only filling

which occurred during 1982 was the filling of some drain-

field lots. The government does not seek relief for any

filling activity on Lots 1-22 as that was likely completed

prior to July 25, 1975. See 33 C.F.R. § 323.3(a) (1).

An estimated 20,000 cubic yards of sand were used to

fll the Ocean Breeze Mobile Home Sites. Filling activity

by the defendant on the Ocean Breeze Mobile Home Sites

occurred on at least one hundred separate days. At no

time did the defendant apply for, nor did the United

States Army Corps of Engineers issue to him, a permit

for filling any of the Ocean Breeze Mobile Home Sites.

Similarly, Donald and James Ballard, under the direc-

tion of the defendant, hauled sand to fill the Mire Pond

Camper Sites. The defendant admitted filling Mire Pond

I on behalf of his father, but insists that he remained ten

or twelve feet back from a self-imposed restricted area.

He professed not to have knowledge as to the identity of

the individual or individuals who filled this restricted

area. The defendant did, however, state that he aided one

lot owner in the construction of a bulkhead. On those

lots abutting Fowling Gut (Lots 22, 23, 24, 25, 26), he

estimates the fill he placed there to be approximately

three feet deep.

Recent photographic slides taken of this area indicate

that the majority of the filling on Mire Pond II has oc-

curred since February 1982. As of May 5, 1982, fill ma-

terial had been placed on those Mire Pond II lots abutting

a fence which separates Mire Pond II from Mire Pond I.

Thus, it would appear that at least portions of lots 4A,

5A. 6A. 7A, 8A and 9A had some fill material.

Donald and James Ballard also were employed by and

directed by the defendant to discharge fill material,

namely sand and oyster shells, on the Eel Creek property

at various intervals from approximate the year 1977

until and including the duration of this action. Filling

40a

on the Eel Creek site was achieved principally by means

of bulldozing and grading of a hill located on the upper-

portions of this property. The defendant owned the grad-

ing equipment used by the Ballards in the filling of the

Eel Creek Site. Akin to his actions vis-a-vis the Ocean

Breeze Sites and the Mire Pond Sites, the defendant did

not apply for a permit prior to engaging in any filling

activity on the Eel Creek property.

The government introduced substantial credible evi-

dence to show that the fill material placed by the de-

fendant on portions of these properties was placed on

land which was typically tidal, marsh or bog in character.

Soil analyses were performed by the government’s ex-

perts upon various samples taken from portions of some

of these properties to determine the composition of the

vegetation lying beneath the fill material.

Government field scientists extracted soil samples from

a site located on Lot 121 on Ocean Breeze Mobile Home

Sites and from a point on property situated between Lot

120 and Fowling Gut. A subsequent analysis of these

samples showed that peat lies beneath the fill material.

Peat is wetland plant material with a high water content

which causes anerobic soil conditions and which is usu-

ally found near the surface. This sample also revealed

an abundance of spartina alterniflora, an obligate wet-

lands species. In combination, peat and spartina alterni-

flora strongly indicate the existence of a wetland type

environment,

Similar analyses were performed upon random soil

samples taken from sites on Lots 39(B), 59(B) and 72

(B) in Ocean Breeze Mobile Home Sites Section B. The

sample taken from Lot 39(B) showed a predominance of

peat and spartina patens, a facultative plant species

which may appear in wetlands or uplands. The analyses

performed upon the soil samples taken from Lots 59(B)

and 72(B) showed peat and distichlis spicata. Distichlis

4la

spicata is generally recognized as an obligate wetland

species.

Samples taken froma site on Lot 9(C) likewise showed

all peat. Although the vegetation was not distinguish-

able, a few loblolly pine needles were found in the sam-

ple. Loblolly pines usually are found on the ridges of

wetlands and their branches and needles frequently pro-

ject over wetland areas.

Core samples from property immediately adjacent to

Ocean Breeze Mobile Home Sites were also examined.

From four sites on property adjoining the northeastern-

most section of Ocean Breeze Mobile Home Sites, the gov-

ernment’s field scientists discovered peat, mixed with a

small amount of sand, and distichlis spicata. A sample

was likewise taken from property immediately adjoining

Ocean Breeze Mobile Home Sites to the south. This sam-

ple revealed peat and spartina alterniflora, an obligate

wetland species. A sample taken from property lying

further south showed an abundance of sand, from which

the remnant plant parts could not be identified.

Because the topographic evidence tended to show that

a ridge and swale system had formed in portions of

Ocean Breeze Section B and the property adjoining it

to the northeast, the Court engaged the services of an

independent expert witness, Professor Donna M. E. Ware,

to determine the speciation of the flora found within this

apparent ridge and swale system. Accompanied by the

Court and counsel for all parties, Dr. Ware visited this

section of the island and examined the vegetation. She

opined that the species of saltmarsh grasses (spartina

patens, distichlis spicata and spartina alterniflora) and

the iva frutescence she observed on the dune swales in

this system had developed under “a regime of tidal con-

nection with saltmarshes” on the southwest sector of

Ocean Breeze Mobile Home Sites Section B. Dr. Ware

further was of the opinion that these swales supported

42a

other species which are known to exist in both brackish

and fresh water conditions. Dr. Ware believed that, with

the sole exception of polygonum punctatum (dotted smart-

weed), these facultative species also developed due to a

tidal connection with those marsh grass species lying to

the southwest of Ocean Breeze. It was Dr. Ware’s opin-

ion that the polygonum punctatum probably invaded the

saltmeadow habitat when the system became less saline

subsequent to the curtailment of the described tidal con-

nection.

Other evidence tended to show that the soil taken

from these sample sites was saturated and was subject

to tidal inundation. Dr. John Clay, a soil scientist, also

examined the composition of the soil taken from lots near

the southern end of Route 2102 in order to ascertain the

soil’s color, wetness and texture. Dr. Clay opined that

the soil he examined reflected a high phase tidal marsh,

which was subject to flooding by tidal action. Likewise,

Mr. Sumner, an Environmental Scientist for the En-

vironmental Protection Agency, stated that the soil at

the sample sites was in a saturated condition. Indeed,

the Court itself observed saturated and marsh type soil

conditions on the western portions of the Ocean Breeze

Mobile Home Sites during the Court’s September 20,

1982 view of that property.

Two major sources provide the tidal waters which flow

into Ocean Breeze Mobile Home Sites and Ocean Breeze

Mobile Home Sites Section B. One system originates

from Assateague Channel, while the other system origi-

nates from Fowling Gut, each of which is a navigable

waterway. The ridge and swale system which comprises

a great percentage of Ocean Breeze Mobile Home Sites

Section B is apparently (or was prior to filling) inter-

connected by means of marshes and small streams, flow-

ing to Black Point Drain and Assateague Channel.

The area now encompassed by the Ocean Breeze Subdi-

vision is shown on geological survey maps published by

43a

the Department of the Interior of the United States for

civilian use. These maps show a substantial portion of

Chincoteague Island. Plaintiffs’ Exhibit 135A, is a map

dated “1943” and contains a stamp date of December 12,

1962 stamped thereon; plaintiff's Exhibit 10, is dated

1965 and was “photoinspected 1973"; on the rear side

of Exhibit 10 and attached thereto is a map dated 1965;

and Ex. 134A is the 1965 map photoinspected as of 1979.

Exhibit 10 shows that Fowling Gut (as labeled on that

plat) is beneath what is now Ocean Breeze Mobile

Home Sites. Fowling Gut continued on to Andrews Land-

ing Gut and thereafter into Assateague Channel. The

1943 map shows the entire area of what is now the

Ocean Breeze Subdivisions as swamp. The 1973 photo-

inspected map shows that the Ocean Breeze Subdivision

‘nclude both swamp and water filled land together with

some dry land.

There is no question that the Ocean Breeze subdivisions

(including Sections B and C) contained substantial

swamps, waterways and ponds prior to the defendant’s

acquisition and filling. A mere glance at Exhibit 134A,

the photoinspected 1979 official map, shows that Sections

B and C of Ocean Breeze lie between what Is shown on

that official map as “Trailer Park” and the non-labeled

record as being mostly ponds and water connected to tidal

areas. This area of ponds and swamp was filled and later

hecame Sections B and C of Ocean Breeze. The defendant

contends that these ponds and the water therein was fresh

water and non-tidal. The Court finds that it was tidal

water and that the only reason that any portion may have

hecome something other than tidal water (i.e., fresh

water) was due directly to and as a proximate result of

the defendant’s filling activities thereon. The Court spe-

cifically declines to lend credence to those witnesses for

the defendant who testified contrary to this finding.

The Court finds that the defendant filled in wetlands

on the tidal and navigable waters of the United States

44a

located on the following lots in Ocean Breeze Mobile Home

Sites: 120, 121, 39B, 59B, 62B, 71B and 72B, all of

which were either under water at the time of the Court’s

view or were shown by core samples to have been wet-

lands,

Lots 7C, 8C, 9C, 10C and 11C in Ocean Breeze Mobile

Home Sites are or were wetlands on the waters of the

United States. Any fill located on these said lots desig-

nated with a C shall be removed and restored by the de-

fendant in accordance with the directions of the Army

Corps of Engineers.

The Court further finds that part or portions of the

following streets were at one time wetlands of the navi-

gable waters of the United States filled by the defendant

without a permit: Sea Breeze Drive, Sea Gull Drive, Sea

Shell Drive, Sea Spray Drive, Sea Horse Drive, Sea

Shore Drive and Ridge Road.*

The Court finds that more than one day each of filling

activity by the defendant occurred with regard to each

and every lot and each and every street above-mentioned

as having wetlands thereon which were filled by the de-

fendant, as well as a minimum of one day for each and

every street above named.

At Mire Pond I, soil analyses were performed on

samples taken from Sites on Lots 25 and 29. In the

sample taken from Lot 25, peat and spartina alterniflora

were found. An examination of the sample extracted

from Lot 29 revealed the presence of peat, a substantial

amount of distichlis spicata and a random incidence of

spartina patens, all of which are found in wetlands.

In examining the aerial photographs and considering

all of the evidence, substantial portions of Lots 22, 23, 24,

25 and 26 were wetlands subject to tidal action in Septem-

‘In addition, the Court finds that several of the lots designated

“Drainfields for Lots” were wetlands in 1977.

45a

ber, 1977, and were part of the “waters of the United

States.”

A field survey of the surface vegetation was made by

the government's field scientists on December 14, 1981 in

Mire Pond II. The government’s field survey disclosed

the existence of spartina alterniflora on what appears to

he Lots 183A and 22A. Reeds (a facultative plant) and

spartina patens has been growing on portions of Lots 8A,

9A and 10A. Spartina patens, distichlis spicata and iva

frutescence were observed on portions of Lots 4A, 5A, 6A

and 7A. The Court itself walked upon this land in

September of 1982 and portions of Lots 8A, 9A, 10A,

11A. 12A, 22A and 138A were under water. Lot 8A had

contained some fill material. The Court finds that Lots

8A. 9A, 10A, 11A, 12A, 22A and 183A are wetlands and

within the waters of the United States and are tidal

waters.

During its view of the Mire Pond Camp Sites, the

Court observed crab pots lying at the bottom of Mire

Pond itself. The water was approximately five or SiX

feet deep and flowed into Fowling Gut which likewise

appeared to be four to six feet deep. It is this same

Fowling Gut which once flowed through what is now

Ocean Breeze into Assateague Channel, which now only

fows into Chincoteague Channel from Mire Pond. At

the time the Court viewed the premises, there was ap-

proximately 9 inches of standing water on Lot 8A, and

that lot was undoubtedly a swamp.

The Court finds the marsh-type environment located

at Mire Pond II was essential for the sustenance of the

marine ecosystem in that area.

The Court further finds that this wetlands march

(inundated by tidal water) which existed in Mire Pond

Il at the time of the view likewise existed in Mire Pond

4 See Exhibit 78.

46a

I prior to the filling therein by the defendant. The test-

ing, the natural countour of the land and the plant mate-

rial found in Mire Pond I and TJ indicate that Lots 22,

23, 24, 25, 26 and 29 of Mire Pond I are or were par-

tially or completely filled wetlands. having been filled by

or at the direction of the defendant. Five of these lots

abutted Fowling Gut (at this point called Mire Pond)

itself, were subject to tidal inundation and were thus part

of the waters of the United States. The Court finds that

the defendant was responsible for the fill material de

posited on the above-enumerated lots. The Court further

finds that the defendant filled Lots 8A, 22, 23, 24, 25,

<6 and 29 of Mire Pond I and Mire Pond II without

first applying for the necessary permits from the United

States Army Corps of Engineers as these lots were part

of the waters of the United States. The Court finds at

least one day of filling occurred at the plaintiff’s direc-

tion for each of the above-enumerated lots or a minimum

of seven separate days of filling on said six lots in Mire

Pond I, and at least four separate days of filling in Mire

Pond II wetlands.

On the defendant’s property at Eel Creek, there was

shown the presence of peat, spartina alterniflora and

Spartina patens, all wetland species. Eel Creek is a navi-

gable waterway and is tidal in nature flowing into Little

Oyster Bay which flows into Assateague Channel. In

Viisting the Eel Creek property on September 20, 1982.

the Court observed marsh covering all but the northern-

most 15 feet of the adjacent Lot 14 in the Highland

Park Development. The topography of the land would

indicate that the adjacent property followed the natural

contour as shown in the hatched area on Exhibit 6A

At the time that the view was made, the adjacent High-

land Park Lot 14 was under water, except for the north-

ernmost 15 feet thereof.

Akin to Mire Pond. the marsh located at Fel Creek

furnishes necessary nutrients to the fish and other marine

inhabitants of Eel Creek.

47a

The evidence showed that approximately 6,000 square

feet of land had been filled, not including the proposed

road built by the defendant and the area of a like amount

which the defendant has already sold to another pur-

chaser.

The defendant contends that since he filled the part

of the propety with oyster shells and other material

which he claimed were natural, he did not pollute or

contaminate existing wetlands. The Court wholly rejects

this view.

Therefore, the Court finds that the defendant filled on

his property at Eel Creek the northern 6,000 square feet

that this placement of fill took more than two days, and

that the fill material was placed in waters of the United

States without the defendant having first applied for the

necessary permits from the United States Army Corps

of Engineers.

The Court finds that the defendant has continued the

violation of the statutes in relation to filling material

for more than 365 days in each instance.

IT,

Based upon observations made by this Court during

its September 29, 1982 view of the property and upon

the evidence adduced during the course of the hearings,

the Court became curious as to whether a waterway in

excess of 40 feet in width, which at one time apparently

traversed Ocean Breeze Mobile Home Site, was an issue

to be considered by the Court in this case. The govern-

ment responded affirmatively.

The defendant claimed that he was unaware that the

government intended to pursue any alleged filling of this

former waterway and stated that he had not conducted

sufficient discovery with regard to this issue as would

enable him to mount a defense. In consideration of the

parties’ relative positions, the Court deferred the claim

4ka

advanced by the government referring to this waterway,

and allowed the parties additional time for discovery and

rescheduled the trial of this claim for a future time

The trial was resumed as to this issue after the comple-

tion of discovery by the defendant

On or about January 26, 1963, Nat Steelman. a retired

oyster inspector, and other watermen commenced the

digging of this contested Fowling Gut Extended water-

way at the expense of the United States. The waterway

was dug as the result of the severe storm of Ash W ednes-

day of 1962 and was ostensibly for mosquito control pur-

poses. An ancillary purpose for construction of the water-

way was to facilitate and encourage boat traffic.’

Fowling Gut Extended was excavated in such a man-

ner that it had a minimum depth of four feet at mean

low water and a width of a minimum of forty feet.

The property owners (Tull’s predecessors in title) were

compensated by the government.

Fowling Gut, as distinguished from Fowling Gut Ex-

tended (that portion which once ran through and under

what is now this subdivision) prior to 1962 had two

outlets to Chincoteague Channel by causeway under Main

Street on State Route 2114. One of these causeways is

at a point near the northeastern corner (Lot 30) of

Ocean Breeze Subdivision and one near the northeastern

corner of the subdivision (Lot 121). Fowling Gut

naturally ran in an east/west direction along the northern

boundary of the subdivision between these two causeways

and thence ran in a short distance approximately 100

feet in a southerly direction along the eastern boundary

of the subdivision (Lots 29 and 30) and then turned

and proceeded eastwardly towards Mire Pond and the

more populated part of the island and higher ground.

It was at this turning point (Lot 29) that Fowling Gut

"See Exhibit 141-1 (letter to Roy C. Tolbert, Treasurer of

Chincoteague Mosquito Control Commission, dated March 25. 1962)

“a,

Extended was excavated in a traignt ne in 14635 it

a southwesterly directior diag nay act wnat | now

the subdivision of Ocean Breeze and that tion unde

()cean Breeze is now located inde VWnat W liq] = =6be Line

letter “g’ in the word “Fowling”’ on what designated

as the Coast and Geodetic Survey Map, Exhibit 10, and

continued in a southwesterly,

aid subdivision but ultimately to Andrews Landing Gut

which emptied into “The Canal” on one side and “Assa

teague Channel’ on the other side. This excavation, i:

effect, created at least two additional islands in the sout!

western portion of Chin¢eoteague. Part of what is now

Ocean Breeze Subdivision would have been on the main

land side of Chincoteague and part would have been on

the island. Thus, Lots 29 through 33; 44 through 51: 57

through 69; Lots 120 and 121; and some drainfield lot

would have heen completely separated byt tidal water alt

least forty feet wide and four feet deep at mean low

water from the remaining lots of what is now Ocean

sreeze Subdivision. Thus, the above-enumerated lot

could not have been utilized unless a bridge was built

on the waterway or the waterway blocked or obstructed

in some manner

Once completed, the waterway was of sufficient width

and depth as to become navigable for large boats and

for a brief period hoats regularly traveled the entire

length of this excavated waterway out to the sea. The

Court finds that this waterway, Fowling Gut Extended.

was navigable in fact and was utilized by boat traffic

ubsequent to 1963 and prior to the time when the de

fendant filled in this waterway without applying for or

obtaining any permit from the Army Corps of Engineer.

Not only was the waterway blocked by the defendant

in this subdivision, but the waterway was also obstructed

by the construction of Bunker Hill Campground Road by

the defendant which is not a part of this particular

litigation

50a

Two November 1975 aerial photographs of the partially

developed Ocean Breeze Mobile Home Sites show this

waterway still flowing across the property as an open

navigable waterway. By late summer of 1976, the sec-

tion of the waterway which traversed Ocean Breeze

Mobile Home Sites was blocked by fill material. The

filling of this waterway took place in late 1975, 1976,

1977 and thereafter.

The Court finds that the filling of Fowling Gut Ex-

tended, the portion of the waterway beneath what is now

Ocean Breeze Subdivision, took more than fifty separate

days of filling operation insofar as that portion con-

tained in what is now Ocean Breeze Mobile Home Sites.

The evidence indicated that no other individuals or con-

cerns were engaged in filling activity on the Ocean Breeze

Mobile Home Sites property during the years in question

and the Court from the testimony of the defendant, the

various persons engaged in the filling operation, the

aerial photographs and the other evidence finds that the

defendant was the sole person engaged in the filling of

this waterway and that such filling was either done per-

sonally by him or at his direction or under his supervision

insofar as Ocean Breeze Mobile Sites are concerned. The

defendant neither applied for nor obtained any permit

from the Corps of Engineers to fill and obstruct this

navigable waterway which clearly falls within the ambit

of “waters of the United States.” Moreover, the defend-

ant profited by his sale of these lots which would not have

been accessible as well as those lots (some 40,000 square

feet) that were actually a filled navigable waterway.

The violation has continued for more than 365 days.

ITT.

Jurisdiction over this action is conferred pursuant to

28 U.S.C. §§ 1331 and 1345.

Pursuant to 33 U.S.C. § 403, the creation cf any ob-

struction not affirmatively authorized by Congress to the

5la

navigable capacity of any of the waters of the United

States is prohibited. Nor shall it be lawful to fill or in

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

tion or capacity of any canal unless the work is author-

ized by the Secretary of the Army. 33 U.S.C. § 403

(1970). This statute was enacted by Congress to give

the federal government jurisdiction to prevent private

parties from obstructing navigable waters of the United

States. United States v. Logan & Craig Charter Service,

Inc., 676 F.2d 1216 (8th Cir. 1982); United States Vv.

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

There is no requirement that a body of water must

sustain actual commerce in order to meet the test of

navigability sufficient to support the Corps’ jurisdiction

over a proposed obstruction. Rather, the mere capability

of commercial use of a body of water will suffice, even if

such commerce is made possible with the addition of arti-

ficial aids. Weiszmann v. District Engineer, United

States Army Corps of Engineers, 526 F.2d 1302, 1305

(5th Cir. 1976) [quoting United States v. Appalachian

Electric Power Co., 311 U.S. 377 (1940)] See Kaiser

Aetna v. United States, 444 U.S. 164 (1979); United

States v. DeFelice, 641 F.2d 1169 (5th Cir. 1981. More-

over, the lack of commercial traffic does not foreclose a

determination of navigability under this section where

personal and private use of boats demonstrates the capa-

bility of a waterway for simpler types of boat traffic.

United States v. Appalachian Electric Power Co., 311

U.S. 377, 416 (1940); United States v. Utah, 283 U.S.

64, 82 (1931); United States v. Pot-Nets, Inc., 363 F.

Supp. 812 (D. Del. 1973).

A private waterway may fall within the ambit of

navigable waters of the United States if it joins an

existing interstate commerce waterway. See Kaiser

Aetna v. United States, supra. Consequently, private

canals which are subject to the ebb and flow of the tide

and are navigable in fact because they are capable of

52a

flow in the stream of interstate commerce and are or may

be so used constituting navigable waterways of the United

States for purpose of the Corps’ jurisdiction under 33

U.S.C. § 403. See Tatum v. Blackstock, 319 F.2d 897

(5th Cir. 1963).

The discharge of any pollutant by any person is ex-

pressly prohibited~by-law, except as provided in sections

1312, 1316, 1317, 1828, 1342, or 1344 of Title 33. 33

U.S.C. § 1311 (1978). Discharge of a pollutant is defined

in § 1362 of Title 33 as any addition of any poilutant

to navigable waters from any point source. 33 U.S.C.

§ 1362 (12) (1978). A point source means any discern-

ible, confined“and discrete conveyance from which pollut-

ants are discharged. 33 U.S.C. § 1862(14) (1978). As

intended by the statute, the term pollutant means any

dredged spoil, solid waste, incinerator residue, sewage,

garbage, sewage sludge, chemical wastes, biological mate-

rials, radioactive materials, wrecked or discarded equip-

ment, rock, sand, cellar dirt. industrial, municipal waste

or agricultural waste, which is discharged into water.

33 U.S.C. § 1862(6) (1978).

Bulldozers and dump trucks constitute point sources

from which pollutants can be discharged within the

meaning of Federal Water Pollution Control Act. United

States v. Weisman, 489 F. Supp. 1831 (M.D. Fla. 1980) ;

United States v. Holland, 373 F. Supp. 665, 668 (M.D.

Fla. 1974).

Similarly, it has been held that fill material constitutes

a pollutant within the statutory definition as expressed in

33 U.S.C. § 1362(6).-United States v. Weisman, supra.

Fill material composed of sand and debris would neces-

sarily be considered an offending pollutant. United States

Vv. Bradshaw, 541 F. Supp. 880 (D. Md. 1981).*

*The United States Army Corps of Engineers regulations define

fill material as “any material used for the primary purpose of re-

placing an aquatic area with dry land or of changing the bottom

elevation of a waterbody.” 83 C.F.R. § 323.2(m) (1981).

53a

Pursuant to 33 U.S.C. § 1344(a), the Secretary of the

Army is authorized to issue permits for the discharge of

fill material into navigable waters of the United States at

specified disposal sites. 33 U.S.C. § 13844(a) (1978).

The statute defines the term navigable waters as waters

of the United States, including the territorial seas. 33

U.S.C. § 1362(7) (1978). In so doing, Congress intended

to give to the term navigable waters, the broadest con-

stitutional interpretation. Deltona Corp v. United States,

657 F.2d 1184 (Ct. Cl. 1981); United States v. Byrd,

609 F.2d 1204 (7th Cir. 1979). Jurisdiction over waters

of the United States is said to extend “well beyond the

mean high water mark to marsh wetlands which are

regularly or periodically inundated.” Conservation Coun-

cil of North Carolina v. Costanzo, 398 F. Supp. 653 (E.D.

N.C. 1975); aff'd 528 F.2d 250 (4th Cir. 1975).

The Army Corps of Engineer regulations further define

“waters of the United States” to include coastal and in-

land waters, rivers and streams that are navigable waters

of the United States, including any adjacent wetlands.

83 C.F.R. § 323.2(a) (2) (1981). The term “navigable

waters of the United States” is described by the regula-

tions as “those waters of the United States that are sub-

ject to the ebb and flow of the tide shoreward to the mean

high water mark and/or are presently used, or have been

used in the past or may be susceptible to use to trans-

port interstate or foreign commerce. 33 C.F.R. § 323.2

(b) ( (1981). As used in 33 C.F.R. § 323.2(a) (2) above,

the term “wetlands” includes those areas that are in-

undated or saturated by surface or ground water at a

frequency and duration sufficient to support, and that

under normal circumstances do support, a prevalence of

vegetation typically adopted for life in saturated soil con-

ditions. 33 C.F.R. § 323.2(c) (1981).

Wetlands generally include swamps, marshes, bogs, and

similar areas. Consistent with this definition of wetlands,

54a

Congress and the courts have interpreted the term wet-

lands to include marshes, bays, and estuaries of water-

bodies subject to tidal inundation. Leslie Salt Co. v.

Froehlke, supra; Avoyelles Sportsmen’s League, Inc. V.

Alexander, 511 F. Supp. 278 (W.D. La. 1981) : Conserva-

tion Council of North Carolina v. Constanzo, supra;

United States v. Darden, C/A No. 81-652 (E.D. Va.

February 2, 1982) (unpublished).

IV.

The defendant has raised several affirmative defenses

to the government’s claims. Based upon the evidence ad-

duced at trial, the Court concludes that the affirmative de-

fenses advanced by the defendant do not relieve him from

liability for violations of 33 U.S.C. § 403 and § 1344.

The defendant first argues that the statute and the reg-

ulations upon which the government relies as the bases

for the exercise of its regulatory powers as they have

been enforced in the Norfolk District against the defend-

ant (presumably 33 U.S.C. §§ 1311, 1344 and 33 C.F.R.

§ 323, et seq.) are unconstitutional in that the enforce-

ment thereof amounts to a taking of property without

compensation in violation of the Fifth Amendment to the

United States Constitution. At trial, the Court granted

summary judgment in favor of the government as to this

issue. Because the defendant has admitted that he never

attempted to obtain an Army Corps of Engineers’ per-

mit prior to the filling of any of the properties at issue

in this litigation his “taking” claim is not yet ripe for

resolution. In United States v. Byrd, supra, the Seventh

Circuit was faced with a similar argument from a de-

fendant who had not yet applied for a permit from the

Army Corps of Engineers. Holding that the defendant’s

argument was premature, the Court explained that, ab-

sent the rendering of some formal decision on the defend-

ant’s application by the Army Corps of Engineers, the

defendant would be assuming a “taking” which may never

55a

materalize. Id. at 1211. See also Deltona Corporation V.

Alexander, supra. Exhaustion of administrative remedies

must necessarily precede any Court’s review of a particu-

lar agency’s action. Defendant Tull’s failure to even

attempt to exhaust his administrative remedies by apply-

ing for a permit from the United States Army Corps

of Engineers renders his taking issue untimely.

The defendant next contends that 33 U.S. §§ 1311 and

1344 and the regulation set forth in 33 C.F.R. § 323.3 (c)

are unconstitutionally vague. As applied to the defend-

ant, these statutes and the implementing regulation are

sufficiently definite to have afforded the defendant, an

‘ndividual of at least ordinary intelligence, fair notice of

what conduct was prohibited or required by law. Un ited

States v. Harriss, 347 U.S. 612 (1954). See United

States v. Oxford Royal Mushroom Products, 487 F.Supp.

852, 855 (E.D. Pa. 1980) (terms navigable waters and

waters of the United States held not void for vagueness).

Furthermore, the Court cannot overlook the evidence in-

dicating that the defendant is a knowledgeable and so-

phisticated developer, who possesses a rather substantial

appreciation for the topography and vegetation on the

island of Chincoteague.’ The defendant’s apparent famil-

iarity with Chincoteague island vegetation belies the

existence of any misapprehension on his part as to what

the pertinent statutes and regulations required of him.

The defendant also seeks to invoke the doctrine of

equitable estoppel against the government for statements

not uttered and actions not taken by members of the

Army Corps of Engineers during the period in which

they were allegedly aware that filling was occurring on

7 For example, when asked by the Court to describe what he con-

sidered to be a marsh, the defendant responded that it was low

lying land which could contain water. The defendant also opined

that a portion of Lot 22(A) on Mire Pond II inspected by the Court

and the parties during its September 20, 1982 view of the property

might be marshland.

56a

these properties. The defendant cites the July 21, 1976

visit to the Ocean Breeze Mobile Home Sites as one in-

stance during which the Corps’ silence “misled” him. It

was during the July 21, 1976 visit that one of the Nor-

folk District engineers made specific reference only to a

prohibition against further filling on the northwest sector

of Ocean Breeze Mobile Home Sites. The defendant sub-

mits that the government should now be estopped from

claiming improper filling activity on other portions of

Ocean Breeze Mobile Homes Sites since they were not

specifically mentioned during the course of that site visit.

Likewise, the defendant asserts that, although govern-

ment officials have long been aware that filling has oc-

curred on the Mire Pond Camper Sites and the Eel

Creek sites, they have taken no affirmative measures,

apart from the commencement of this action, to discour-

age or prevent the continuation of these activities.

The Court finds this contention of the defendant is

without foundation as the Court: feels that the agents of

the United States government did not mislead the defend-

ant. Particularly with regard to the Eel Creek property,

there is no evidence that the Army Corps of Engineers

stood idly by while an endless parade of the defendant’s

dump trucks and bulldozers passed in review. To the con-

trary, a formal cease and desist order was issued by the

Army Corps of Engineers in August of 1976, prohibiting

the defendant from any further filling on the Eel Creek

property until the defendant had applied for a permit.

And as to Mire Pond II, the plaintiff obtained an injunc-

tion prohibiting the defendant’s filling activities thereon.

Notwithstanding the evidence of the government’s more

than tepid interest in the defendant’s filling activities,

inaction or tacit acquiescence by’ government officials as

to unlawful conduct alone cannot provide the basis for the

imposition of an equitable estoppel against the United

States of America. The general rule is that the United

States is neither bound by nor estopped by the acts of

via

its officers or agents in entering into an arrangement to

do or cause to be done what the law does not sanction or

permit. See Federal Crop Insurance Corp V. Merrill, 332

U.S. 380 (1947); Utah Power & Light Co. v. United

States, 243 U.S. 389 (1917). The United States Supreme

Court has intimated, but not yet stated conclusively, that

perhaps some affirmative conduct by the government's

agents might warrant an exception to the general rule

against the invoking of an equitable estoppel against the

government. See, e.g., Schweiker v. Hansen, 450 U.S.

785, 788 (1981).

In Deltona Corporation v. Alexander, supra, the Elev-

enth Circuit held that the record failed to disclose evidence

of any affirmative conduct on the part of government

officials sufficient to estop the government from denying

dredge and fill permits to a developer even though gov-

ernment officials had known of development plans from

their inception and had unofficially endorsed the plans.

See United States v. Harvey, 661 F.2d 767 (9th Cir.

1981) (affirmative conduct must be shown in order to

invoke equitable estoppel against the government. )

The evidence here failed to disclose any statements or

conduct of an affirmative nature conveyed by government

officials to the defendant which could have caused the

defendant to believe that he was authorized to fill those

properties not specifically designated during the visits to

the site or contained within the correspondence between

the parties without first applying for a permit from the

Army Corps of Engineers. Moreover, it has not been

shown that any silence or inaction by the government

was purposefully designed to mislead or confuse the de-

fendant. The Court therefore finds no basis upon which

to invoke the doctrine of equitable estoppel against the

United States. See United States v. Board of Trustees of

Florida Keys Community College, 531 F. Supp. 267 (S.D.

Fla. 1981) (government agent’s delay in issuing a cease

and desist order will not estop the government from

~

oesa

enforcing violations under Rivers and Harbors Appropri-

ation Act of 1899 and the Federal Clean Water Act).

Moreover, the defendant and the plaintiff were engaged

in other adversary court actions during the relevant time

period on different properties. The defendant was thus

well aware of the necessity for applying for permits.

The defendant neither requested an application for a

permit nor has he obtained a permit for any of the

properties involved herein, or indeed any of his proper-

ties. Rather, the defendant has chosen to purposely dis-

regard the regular manner of determination in order to

assert some basis as justification of his illegal activities.

Avoidance is always permissible but the defendant’s ac-

tivities appear to this Court to have been a deliberate

attempt at evasion and misdirection by the defendant.

Such actions would never support a claim for an estoppel

even were the government not involved.

The defendant also argues that the issue as to whether

the Army Corps of Engineers has regulatory jurisdiction

over Ocean Breeze Mobile Home Sites, Mire Pond I and

[I and Eel Creek has already been litigated in United

States v. Tull, C/A No. 75-819-N (E.D. Va. November

12, 1975) (unpublished) and United States v. Tull. C/A

No. 73-304 (E.D. Va. March 21, 1974) (unpublished)

and therefore should not be relitigated under the princi-

ples of collateral estoppel. A copy of the opinions ren-

dered in those two actions was introduced into evidence

by the defendant.

The doctrine of collaterial estoppel inhibits a litigant

“against whom an issue has-been decided in a prior

final judgment from relitigating its rejected position in

a subsequent proceeding.” Hughes v. Heyl & Patterson,

Inc., 647 F.2d 452 (4th Cir. 1981) iciting Parklane

Hosiery Co. Ine. vy. Shore, 439 U.S. 322 (1979) |. For

this Court to apply the principles of collateral estoppel,

the question expressly and definitely raised in this suit

must be the same as that actually litigated and adjudged

59a

adversely to the government in either of the cited de-

cisions involving the defendant Edward Lunn Tull

Hughes v. Heyl & Patterson, supra. See Montana V.

[nited States, 440 U.S. 147 | 1979).

Having thoroughly considered all the issues presented

in the prior actions, the Court is of the opinion that

the resolution of the issues in those cases does not bar

the present adjudication of any issue in this ease. Indeed,

the defendant concedes that different properties are in-

‘nvolved. Also, the alleged filling conducted thereon ap-

pears to have been of a different character than that

which is complained of here. As there would appear to be

an absence of identity of issues among the three cases,

collateral estoppel will not be applied.

IV,

Pursuant to 33 U.S.C. § 406, a district court is author-

ized to enforce by injunction, the removal of an obstruc-

tion placed in navigable waters In violation of 33 U.S.C.

403. 338 U.S.C. §406 (1970). Where the navigable

capacity of a particular navigable body of water has been

unlawfully altered or modified, a district court maintains

the reauisite injunctive power to order appropriate

restoration. United States v. Republic Steel Corp., 362

U.S. 482 (1960).

The government may also obtain injunctive relief

against an offending party for violations of 33 U.S.C.

§ 1311, pursuant to 33 U.S.C. § 181911). A district court

may also assess a Civil penalty against any person who

fails to comply with 33 U.S.C. § 1811 or $1344, 33

U.S.C. § 1819(d).

As this Court sits in equity, as well as in law, it cannot

look favorably upon the defendant’s unwillingness to seek

the permit required by law for any of his filling activities

or upon his failure to discuss any possible alternatives

to his proposed filling of wetlands with government offi-

60a

cials. Nor can this Court look kindly upon the defend-

ant’s apparent refusal to comply with a cease and desist

order issued by a United States government agency.

Unlike the plaintiff in 1902 Atlantic Limited v. Hudson,

C/A No. 82-533 (E.D. Va. , 1983) decided this

day, wherein the plaintiff not only applied for a permit,

but submitted a plan to mitigate damage as to affected

wetlands, defendant Tull has shown scant respect for

the preservation of waters of the United States,

It would be inequitable for this Court to allow the

defendant to benefit from the commission of an unlawful

act. For the sale of each lot which he owned, the de-

fendant realized approximately $5,000 net profit per lot.

Moreover, more than one day’s illegal activities in filling

took place with regard to each lot and more than 365

days’ violation has taken place in allowing the illegal

fill to remain. Thus, for the filling of the wetlands lots

120, 121, 39(B), 59(B), 62(B), 71(B), and 72(B) on

Ocean Breze Mobile Home Sites, the defendant is hereby

assessed a total penalty or civil fine in the sum of

$35,000.00.

Although the defendant at no time material to this

action owned lots 22, 23. 24, 25, 26 and 29 in Mire Pond

I, sufficient to have derived a profit from their sale, he

nevertheless filled the wetlands therein for his own eco-

nomic benefit. Similarly, although the defendant has

not yet sold lot 8(A) on Mire Pond II. his filling thereon

was designed to facilitate their sale. and the Court will

assess an appropriate penalty for the unlawful filling of

the lots on Mire Pond II. Since the evidence showed that

at least one day’s filling occurred on each of these lots,

the defendant shall be assessed a total penalty or civil

fine of $35,000.00 for the filling of Lots 22, 23, 24, 25.

26 and 29 and 8(A).

A $5,000 penalty or civil fine shall likewise he imposed

upon the defendant for the filling of the wetlands on the

6,000 square foot parcel of land adjoining Eel Creek

6la

Further, any fill placed on lots 7C, 80, 9C, 10C and

11C in Ocean Breeze Mobile Home Sites Section C shall

be removed, and those lots restored to wetlands within

six months from the date hereof unless the defendant is

granted an after-the-fact permit by the Army Corps of

Engineers. The defendant shall post a $10,000 bond with

surety to insure completion of the restoration of these

lots.

For the unlawful filling of a navigable waterway of the

United States, namely the extension of Fowling Gut, the

Court ORDERS the defendant to pay a fine in the sum

of $250,000.00. The defendant, Edward Lunn Tull, may

suspend the payment of this fine on the specific condition

that he restore the extension of Fowling Gut to its former

navigable condition as it existed between 1963 and No-

vember 1, 1975, through what is now the Ocean Breeze

Subdivision, as provided in this Court’s opinion. If the

defendant so elects to restore the extension of Fowling

Gut, he must file a written election with the Clerk of this

Court within ten (10) days from the date hereof and

shall post a penalty bond secured by a corporate surety

approved by the Clerk of the Court in the amount of

$300,000.00, payable to the United States conditioned

upon the completion of the restoration within twelve

(12) months from the date of this order. Further, the

defendant shall restore the waterway under the super-

vision and to the satisfaction of the United States Army

Corps of Engineers in accordance with the instructions

contained in the Court’s opinion. Equity dictates that

the defendant either pay a stiff civil penalty or make

appropriate restoration for permanently depriving the

United States government and its people of a navigable

waterway capable of supporting both commercial naviga-

tion and pleasure boating.

The defendant is further ORDERED to restore two

lots (other than lots 8(A), 9(A), 10( A). 11(A), 12(A)

or 22(A)) in Mire Pond Camper Sites II to wetlands as

62a

part mitigation for the lots unlawfully filled by the de-

fendant in Mire Pond I. Third parties have interests in

lots 22, 23, 24, 25, 26 and 29 of Mire Pond, and this

Court seeks not to punish them for the acts of the de-

fendant. Additionally, the defendant and those who suc-

ceed to his rights are permanently enjoined from further

filling of any kind in lots 8(A), 9(A), 10(A), 11(A),

and 12(A), 18 (A) and 22(A) (the latter six lots also

appearing to be wetlands) on Mire Pond II until such

time as appropriate restoration of wetlands as required

above has been made, (as approved by and under the

supervision of the United States Army Corps of Engi-

neers) and until such time as the necessary permits are

issued for filling on any of these lots if the Corps of

Engineers desires to grant such permits in accordance

with its rules and statutes. Restoration thereof shall be

completed within six (6) months from the date of this

order or within such future date as set by this Court.

Prior to any such restoration, the defendant shall post

a bond in the sum of $10,000 with surety.

It is further ORDERED that the defendant restore

to wetlands all portions of the 6,000 square foot parcel

of land abutting Eel Creek (previously discussed in Part

I of this opinion), which were owned by the defendant at

the time of the filing of any lis pendens or the filing of

the suit (whichever was earlier). Restoration shall be

completed within (6) months of the date of this order or

within such future dates as set by this Court and shall

be under the supervision of the Army Corps of Engi-

ners of the United States. Once appropriate restoration

has been made, the defendant shall be permanently en-

joined from conducting any filling activities thereon until

such time as he shall obtain a permit from the United

States Army Corps of Engineers. Prior to the commence-

ment of any such restoration on the Eel Creek property,

the defendant shall post a bond in the sum of $5,000

with surety.

63a

It is further ORDERED that the costs of this litigation

be borne by the defendant. Included within the costs of

this litigation shall be an $800.00 expert witness fee to

be paid to Professor Donna Ware, which fee the Court

specifically finds is reasonable. Should the defendant fail

to pay this fee within thirty (30) days from the date

of this order, said fee shall be paid by the plaintiff, the

United States of America, which the plaintiff may there-

after recover from the defendant.

The Court will entertain a request by the government

for a reasonable award of attorney’s fees. Such a request

should be submitted within ten (10) days in accordance

with the local rules.

IT IS SO ORDERED.

s/ Robert G. Doumar

United States District Judge

At Norfolk, Virginia

September 28th, 1983

64a

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Norfolk Division

Civil Action No. 81-688-N

UNITED STATES OF AMERICA

Vv.

EDWARD LUNN TULL

JUDGMENT ORDER

A lengthy trial before the Court has ensued. Based

upon the factual findings and legal conclusions embodied

within the opinion this day filed, judgment will be entered

for the United States of America against the defendant,

Edward Lunn Tull, and accordingly a total penalty or

civil fine is assessed as follows:

(1) For the filling of the wetlands on lots 120, 121,

39(B), 59(B), 62(B), 71(B) and 72(B) on the various

plats of Ocean Breeze Mobile Home Sites, the sum of

$35,000.00:

(2) For the filling of lots 22, 28, 24, 25. 26 and 29

in Mire Pond I, and lot 8(A) in Mire Pond II. the sum

of $35,000.00:

(3) For the filling of the wetlands on the 6,000

square foot parcel of land adjoining Eel Creek, the sum

of $5,000.00.

IT IS FURTHER ADJUDGED, ORDERED AND

DECREED:

65a

(A) That the fill placed on lots 7C, 8C, 9C, 10C and

11C in Ocean Breeze Mobile Home Sites Section C shall

be removed by the defendant, Edward Lunn Tull, and

those lots restored by the defendant, Edward Lunn Tull

to wetlands within six months from the date hereof

under the direction of the Army Corps of Engineers

unless the defenda.:. ‘s granted an after-the-fact permit

by the Army Corps of Engineers as conditioned in this

Court’s opinion;

(B) That the defendant, Edward Lunn Tull, shall

restore to wetlands all portions of the 6,000 square foot

parcel of land abutting Eel Creek under the direction of

the Army Corps of Engineers as provided in the Court’s

opinion ;

(C) That the defendant, Edward Lunn Tull, for the

unlawful filling of the extension of Fowling Gut, shall

pay a fine in the sum of $250,000.00, however, the de-

fendant may, by an election duly filed in writing in the

Clerk’s Office of this Court, within ten (10) days from

the date hereof, obtain a suspension of said fine on the

condition that the defendant, Edward Lunn Tull, agree

to restore the extension of Fowling Gut to its former.

navigable condition as it existed between 1963 and No-

vember 1, 1975, as provided in this Court’s opinion, but

in which event, the defendant shall post a penalty bond

payable to the United States with a corporate surety

approved by the Clerk of this Court in the sum of

$300,000.00 conditioned upon his restoration within one

year of the date of this order said extension of Fowling

Gut under the directions of the Army Corps of Engi-

neers in accordance with the Court’s opinion this day

filed.

(D) That the defendant, Edward Lunn Tull, convert

to wetlands two lots in Mire Pond Camp Sites Section II

other than lots 8(A), 9(A), 10(A), 11(A), 12(A) or

22(A) as part mitigation for the lots unlawfully filled

by the defendant in Mire Pond I.

66a

The defendant, Edward Lunn Tull, and his successors

and/or assigns are permanently enjoined from any filling

of any kind of lots 8(A), 9(A), 10(A), 11(A), 12(A),

13(A) and 22(A) in Mire Pond Section II until such

time as the necessary permits are issued for filling on any

of the lots if the Army Corps of Engineers desires to

grant such permits in accordance with its rules and

regulations and the statute applying thereto.

IT IS FURTHER ORDERED that the chargeable costs

of this litigation be borne by the defendant and including

therewith shall be at $800.00 expert witness fee to be paid

to Professor Donna M. E. Ware by delivering to the Clerk

of this Court the sum of $800.00, which sum shall be

transmitted by said Clerk to Professor Ware. Should the

defendant fail to pay said sum to the Clerk of this Court

for transmittal to Profesor Ware within thirty (30)

days from the date hereof, then said amount shall be paid

by the United States-and shall be a chargeable court cost.

All removal, restoration to and/or conversion to wet-

lands shall be completed within six (6) months from the

date of this order unless an extension of time is granted

by this Court, except that the restoration of Fowling

Gut Extended shall be completed within nine (9) months

from the date hereof.

The plaintiff shall file any requests for attorney’s fees

and expenses within ten (10) days from the date hereof.

Any prior injunction herein shall be null and void upon

the entry of.and compliance with this order.

IT IS SO ORDERED.

‘s/ Robert G. Doumar

United States District Judge

At Norfolk, Virginia

Sept. 28, 1983

67a

APPENDIX E

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

C.A. No. 81-688-N

UNITED STATES OF AMERICA,

Plaintiff,

V.

EDWARD LUNN TULL,

Defendant.

SECOND AMENDED COMPLAINT

The United States of America, through its undersigned

attorneys and by authority of the Attorney General, al-

leges that:

1. This is a civil action instituted pursuant to Section

309 of the Clean Water Act, 33 U.S.C. 1319, to obtain

injunctive relief and the imposition of civil penalties for

defendant’s failure to comply with Section 301(a) of the

Clean Water Act, 33 U.S.C. 1311 and pursuant to Section

12 of the Rivers and Harbors Act, 33 U.S.C. 406, to ob-

tain injuncti:- relief for defendant’s failure to comply

with Sectior 10 of the Rivers and Harbors Act, 33 U.S.C.

403.

2. Authority to bring this suit is vested in the Depart-

ment of Justice by 28 U.S.C. 516 and 519 and 33 U.S.C.

1366.

3. This Court has jurisdiction over the subject matter

of this action pursuant to 28 U.S.C. 1845 and 33 U.S.C.

68a

1319, and 33 U.S.C. 406. Notice of commencement of this

action has been given to the Commonwealth of Virginia.

4. Venue is proper pursuant to 28 U.S.C. 1391(b) and

(c) and 33 U.S.C, 1319(b).

5. Defendant Edward Lunn Tull of South Main Street,

Chincoteague, Virginia 23336, is and, at all times perti-

nent to this Complaint, has been a resident of and doing

business in the Eastern District of Virginia.

CLAIM ONE

6. Section 301(a) of the Act, 33 U.S.C. 1311(a), pro-

hibits the discharge of any pollutant into waters of the

United States, except as in compliance with, inter alia,

a permit issued by the Secretary of the Army pursuant

to Section 404 of the Act, 33 U.S.C. 1344.

7. Section 309(d) of the Act, 33 U.S.C. 1319(d), pro-

vides that any person who violates Section 301(a) of the

Act, 33 U.S.C. 1311(a), shall be subject to civil penalty

not to exceed $10,000 per day of such violation.

8. Defendant owns and/or controls real property on

Chincoteague Island, specifically a real property commonly

known as Ocean Breeze Mobile Home Sites, Ocean Breeze

Mobile Home Sites Section B, Ocean Breeze Mobile Home

Sites Section C, adjacent to Fowling Gut and Black Point

Drain, two waterways connected to Chincoteague Channel

and Assateague Channel, respectively.

9. Pursuant to Section 502(7) of the Act, 33 U.S.C.

1362(7), the wetlands adjacent to Fowling Gut and

Black Point Drain on the real property known as Ocean

Breeze Mobile Home Sites and Ocean Breeze Mobile Home

Sites Section B, and Ocean Breeze Mobile Home Sites

Section C are waters of the United States.

10. Commencing on or after July 1975, and continu-

ing to the present time, at specific times best known to

the defendant, defendant discharged or caused to be dis-

69a

charged pollutants, consisting of sand, dirt and other fill

material, using trucks and other discrete conveyances into

the wetlands on the real property described in Para-

graphs Eight and Nine above. Plaintiff further alleges

that unless enjoined by this Court defendant will continue

to discharge pollutants onto the wetlands described in

Paragraph 8 above.

11. The Secretary of the Army has not issued a per-

mit for the discharge of fill material pursuant to Section

404 of the Act, 33 U.S.C. 1344, to defendant for the

operations described in Paragraph Ten.

12. The acts set forth in Paragraph Ten without the

permit described in Paragraphs Six and Eleven constitute

violations of Section 301(a) of the Act, 33 U.S.C. 1311

(a), and entitle the United States to relief, pursuant to

U.S.C. 13819.

CLAIM TWO

13. Paragraphs Six and Seven of this Complaint are

herein incorporated by reference as if fully set forth

herein.

14. At all times pertinent to this claim, defendant

owned and/or controlled real property on Chincoteague

Island, specifically a property commonly known as Mire

Pond Camper Sites, adjacent to Fowling Gut, a waterway

connected to Chincoteague Channel.

15. Pursuant to Section 502(7) of the Act, 33 U.S.C.

1362(7), the wetlands adjacent to Fowling Gut known as

Mire Pond Camper Sites are waters of the United States.

16. At specific times best known to the defendant,

sometime between September 28, 1977 and November 14.

1980, defendant discharged or caused to be discharged

pollutants, consisting of sand, dirt, and other fill ma-

terial, using trucks and other discrete conveyances into

the wetlands adjacent to Fowling Gut described in Para-

graphs Fourteen and Fifteen above.

70a

17. The Secretary of the Army has not issued a per-

mit for the discharge of fill material pursuant to Section

404 of the Act, 33 U.S.C. 1344, to defendant for the

operations described in Paragraph Sixteen.

18. The acts set forth in Paragraph Sixteen without

the permit described in Paragraphs Six and Seventeen

constitute violations of Section 301(a) of the Act, 33

U.S.C. 1311(a), and entitle the United States to relief,

pursuant to 33 U.S.C. 1319.

CLAIM THREE

19. Paragraphs Six and Seven of this Complaint are

herein incorporated by reference as if fully set forth

herein.

20. Defendant owns and/or controls real property

on Chincoteague Island, specifically property immediately

north of Maddox Road and west of Eel Creek, a water-

way connected to Little Oyster Bay and Assateague

Channel.

21. Pursuant to Section 502(7) of the Act, 33 U.S.C.

1362(7), these wetlands adjacent to Eel Creek described

in Paragraph Twenty are waters of the United States.

22. At specific times best known to the defendant, but

sometime commencing December 6, 1980 and continuing

to the present time, defendant discharged or caused to

be discharged pollutants, consisting of sand, dirt and

other fill material, using trucks and other discrete con-

veyances into the wetlands adjacent to Eel Creek de-

scribed in Paragraph Twenty above. Plaintiff further

alleges that unless enjoined by this Court, defendant will

continue to discharge pollutants onto the wetlands de-

scribed in Paragraph 21 above.

23. The Secretary of the Army has not issued a per-

mit for the discharge of fill material pursuant to Sec-

tion 404 of the Act, 33 U.S.C. 1344, to defendant for the

operations described in Paragraph Twenty-Two.

7la

24. The acts set forth in Paragraph Twenty-two with-

out the permit described in paragraphs Six and Twenty-

Three above are violations of Section 301(a) of the Act.

33 U.S.C. 1311(a), and entitle the United States to re-

lief, pursuant to 33 U.S.C. 1319.

CLAIM FOUR

25. Paragraphs Six and Seven of this Complaint are

£

herein incorporated by reference as if fully set forth

herein.

26. On plaintiff's information and belief, defendant

owns and/or controls additional wetlands, in the vicinity

of the properties described in Paragraphs 8, 15, and 21

above, onto which defendant has discharged and/or

caused to be discharged, or may in the future discharge

and/or cause to be discharged pollutants, consisting of

sand, dirt and other fill material onto such wetlands in

violation of Section 301 of the Clean Water Act. 33

U.S.C. 1311. The location of these wetlands is wel]

known to defendant.

CLAIM FIVE

9

27. Section 10 of the Rivers and Harbors Act of

1899 prohibits tue creation of any obstruction to the

navigable capacity of any waters of the United States

except as authorized by the Secretary of the Army and

recommended by the Chief of Engineers, 38 U.S.C. 403.

28. On plaintiff’s information and belief, defendant

filled the navigable water of the United States on the

real property commonly known as Ocean Breeze Mobile

Home Sites without the authorization of the Secretary

of the Army and the recommendation of the Chief of

Engineers.

WHEREFORE plaintiff, United States of America,

prays that:

72a

1. Defendant be enjoined from any and all further

violations of Section 301(a), 38 U.S.C. 13811 (a).

2. Defendant be directed to take and complete all

measures to restore the wetland areas affected by the

unlawful activities set forth in Claims One, Two, Three,

and Four above to their condition prior to the discharge

of fill material by defendant;

8. Defendant be assessed civil penalties in the amount

of $10,000 per day for each violation of Section 301 (a)

of the Act. 33 U.S.C. 1311(a), set forth in Claims One,

Two, Three, and Four above;

4. This Court enter an injunction requiring defendant

to remove the obstruction unlawfully created in the navi-

gable waters of the United States as described in Claim

Five.

5. Plaintiff be awarded the costs and disbursements

of this action; and

6. Plaintiff be granted such other relief as the Court

may deem just and proper.

Respectfully submitted,

ELSIE MUNSELL

United States Attorney

JOHN F. KANE

Assistant United States

Attorney

Eastern District of Virginia

P. O. Box 60

Norfolk, Virginia 23501

73a

8/ Diane L. Donley

DIANE L. DONLEY

Attorney, Environmental]

Defense Section

Land and Natural Resources

Division

U.S. Department of Justice

9th and Pennsylvania Avenue.

N.W.

Washington, D.C. 20530

Of Counsel

Benjamin Kalkstein

Attorney, United States

Environmental Protection Agency

Region III

Philadelphia, PA 19106

74a

CERTIFICATE OF SERVICE

| hereby certify that the foregoing First Amended

Complaint was hand-delivered, this 5th day of October,

1982, to the following persons:

Richard R. Nageotte

Nageotte, Borinsky and Zelnick

14908 Jefferson Davis Highway

Woodbridge, Virginia 22191

Counsel for Defendant

Benjamin Kalkstein

United States Environmental

Protection Agency

Region II]

Curtis Building

6th and Walnut Street

Philadelphia, Pennsylvania

19106

John F. Kane

Post Office Box 60

United States Post Office

and Courthouse

Granby Street

Norfolk, Virginia 23510

Judith Keith, Esq.

Sara Schneeberg, Esq.

Office of General Counsel

United States Environmental!

Protection Agency

401 M Street, S.W. EN 338

Washington, D.C. 20460

s/ Diane L. Donley

DIANE L. DONLEY

75a

APPENDIX F

AMENDMENT VIL.

CONSTITUTION OF THE UNITED STATES

In suits at common law, where the value in contro-

versy shall exceed twenty dollars, the right of trial by

jury shall be preserved, and no fact tried by a jury shall

be otherwise re-examined in any court of the United

States, than according to the rules of the common law.

The Rivers and Harbors Act of 1899, 33 U.S.C. 401

et seq., provides in relevant part:

> 403. Obstruction of navigable waters generally;

wharves; piers, etc. ; excavations and filling in

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity of

any of the waters of the United States is hereby

prohibited; and it shall not be lawful to build or

commence the building of any wharf, pier, dolphin,

boom, weir, breakwater, bulkhead, jetty, or other

structures in any port, roadstead, haven, harbor,

canal, navigable river, or other water of the United

States, outside established harbor lines, or where no

harbor lines have been established, except on plans

recommended by the Chief of Engineers and author-

ized by the Secretary of War [Secretary of the

Army]; and it shall not be lawful to excavate or

fill, or in any manner to alter or modify the course,

location, condition, or capacity of, any port, road-

stead, haven, harbor, canal, lake, harbor or refuge,

or inclosure within the limits of any breakwater, or

of the channel of any navigable water of the United

States, unless the work has been recommended by

the Chief of Engineers and authorized by the Sec-

retary of War [Secretary of the Army] prior to

beginning the same.

76a

$406. Penalty for wrongful construction of bridges,

piers, etc.; removal of structures

Every person and every corporation that shall vio-

late any of the provisions of sections nine, ten, and

eleven of this Act [33 USCS $§ 401, 403, and 404],

or any rule or regulation made by the Secretary of

War [Secretary of the Army] in pursuance of the

provisions of said section eleven [338 USCS § 404],

shall be deemed guilty of a misdemeanor, and on con-

viction thereof shall be punished by a fine not ex-

ceeding $2,500 nor less than $500, or by imprison-

ment (in the case of a natural person) not exceed-

ing one year, or by both such punishments, in the

discretion of the court. And further, the removal of

any structures or parts of structures erected in vio-

lation of the provisions of the said sections may be

enforced by the injunction of any circuit court |dis-

trict court] exercising jurisdiction in any district

in which such structures may exist, and proper pro-

ceedings to this end may be instituted under the

direction of the Attorney General of the United

States.

The Clean Water Act of 1977, 33 U.S.C. 1251 et seq.,

provides in relevant part:

$33 U.S.C. 1311(a). Ilegality of pollutant discharges

except in compliance with law

Except‘as in compliance with this section and sec-

tions 1312, 1316, 1317, 1328, 1342, and 1344 of this

title, the discharge of any pollutant by any person

shall be unlawful.

§ 33 U.S.C. 1319. Enforcement

(b) Civil actions. The Administrator is authorized to

commence a civil action for appropriate relief, includ-

ing a permanent or temporary injunction, for any vio

77a

lation for which he is authorized to issue a compliance

order under subsection (a) of this section. Any action

under this subsection may be brought in the district court

of the United States for the district in which the defend-

ant is located or resides or is doing business, and such

court shall have jurisdiction to restrain such violation and

to require compliance. Notice of the commencement of

such action shall be given immediately to the appropriate

State.

(d) Civil penalties. Any person who violates section 301,

302, 306, 307, 308, 318, or 405 of this Act [33 U.S.C.

§ 1311, 1312, 1316, 1317, 1818, 1328, or 1345], or any

permit condition or limitation implementing any of such

sections in a permit issued under section 402 of this

Act [33 USCS § 1342] by the Administrator, or by a State

or in a permit issued under section 404 of this Act [33

USCS § 1344] by a State, and any person who violates

any order issued by the Administrator under subsection

(a) of this section, shall be subject to a civil penalty not

to exceed $10,000 per day of such violation.

§ 33 U.S.C. 1344(a). Discharge into navigable waters

at specified disposal sites

The Secretary [of the Army] may issue permits,

after notice and opportunity for public hearings for

the discharge of dredged or fill material into the

navigable waters at specified disposal sites. Not

later than the fifteenth day after the date an appli-

cant submits all the information required to com-

plete an application for a permit under this subsec-

tion, the Secretary shall publish the notice required

by this subsection.

§ 33 U.S.C. 1362. Definitions

Except as otherwise specifically provided, when used

in this Act:

78a

(6) The term “pollutant” means dredged spoil, solid

waste, incinerator residue, sewage, garbage, sewage

sludge, munitions, chemical wastes, biological materials,

radioactive materials, heat, wrecked or discarded equip-

ment, rock, sand, cellar dirt and industrial, municipal,

and agricultural waste discharged into.water. This term

does not mean (A) “sewage from vessels” within the

meaning of section 312 of this Act [33 USCS § 13822];

or (B) water, gas, or other material which is injected

into a well to facilitate production of oil or gas, or water

derived in association with oil or gas production and

disposed of in a well, if the well used either to facilitate

production or for disposal purposes is approved by au-

thority of the State in which the well is located, and if

such State determines that such injection or disposal will

not result in the degradation of ground or surfave water

resources.

’

(7) The term “navigable waters” means the waters of

the United States, including the territorial seas.

Regulations promulgated by the United States Army

Corps of Engineers define Clean Water Act jurisdiction

in relevant part as follows (33 C.F.R. 323.2(a)-(d)):

Definitions.

For the purpose of this regulation, the following

terms are defined:

(a) The term “waters of the United States”

means: *

(1) All waters which are currently used, or were

used in the past, or may be susceptible to use in

1 The terminology used by the CWA is “navigable waters” which

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

States including territorial seas.’”’ For purposes of clarity, and to

avoid confusion with other Corps of Engineers regulatory pro-

grams, the term “waters of the United States” is used throughout

this regulation.

79a

interstate or foreign commerce, including all waters

which are subject to the ebb and flow of the tide;

(2) All interstate waters including interstate wet-

lands;

(3) All other waters such as intrastate lakes, riv-

ers, streams (including intermittent streams), mud-

flats, sandflats, wetlands, sloughs, prairie potholes,

wet meadows, playa lakes, or natural ponds, the use,

degradation or destruction of which could affect. in-

terstate or foreign commerce including any such

waters;

(1) Which are or could be used by interstate or

foreign travels for recreational or other pur-

poses; or

(ii) From which fish or shellfish are or could

be taken and sold in interstate or foreign com-

merce; or

(iii) Which are used or could be used for in-

dustrial purposes by industries in interstate

commerce;

(4) All impoundments of waters otherwise de-

fined as waters of the United States under this

definition.

(5) Tributaries of waters identified in para-

graphs (a) (1)-(4) of this section:

(6) The territorial sea:

(7) Wetlands adjacent to waters (other than wa-

ters that are -themselves wetlands) identified in

paragraphs (a) (1)-(6) of this section. Waste

treatment systems, including treatment pond or la-

goons designed to meet the requirements of CWA

(other than cooling ponds as defined in 40 CFR 123.-

80a

11(m) which also meet the criteria of this defini-

tion) are not waters of the United States.

(b) The term “navigable waters of the United

States” means those waters of the United States that

are subject to the ebb and flow of the tide shoreward

to the mean high water mark and/or are presently

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

susceptible to use to transport interstate or foreign

ecommerce. (See 33 CFR Part 329 for a more com-

nlete definition ef this term. )

(c) The term “wetlands” means those areas that

are inundated or saturated by surface or groun< wa-

ter at a frequency and duration sufficient to support,

and that under normal circumstances do support, a

prevalence of vegetation typically adapted for life in

saturated soil conditions. Wetlands generally include

swamps, marshes, bogs and similar areas.

(d) The term “adjacent” means bordering, con-

tiguous, or neighboring. Wetlands separated from

other waters of the United States by man-made dikes

or barriers, natural river berms, beach dunes and the

like are “adjacent wetlands”.

Regulations promulgated by the United States Army

Corps of Engineers establishing the duties of the Dis-

trict Engineer upon learning of a violation or potential

violation during the time period applicable to this case

are:

§ 33 C.F.R. 209.120(f) (12) (i) (1975). Unauthorized ac-

tivities

The following procedures will be followed with respect

to activities which are performed without proper au-

thorization.

(i) When the District Engineer becomes aware of

any unauthorized_activity which is still in progress,

8la

he shall immediately issue a cease and desist order

to all persons responsible for and/or involved in the

performance of the activity. In appropriate cases, the

District Engineer may also order interim protective

measures to be taken in order to protect the public

interest. If there is noncompliance with this cease

and desist order, the District Engineer shall forward

a factual report immediately to the local U.S. Attor-

ney with a request that a temporary restraining

order and/or preliminary injunction be obtained

against the responsible persons.

> 33 C.F.R. 326.2 (1977). Discovery of unauthorized ac-

tivity in progress

When the District Engineer becomes aware of any

unauthorized activity which is still in progress, he

shall immediately issue a cease and desist order to

all persons responsible for and/or involved in the

performance of the activity. If appropriate, the Dis-

trict Engineer may also order interim protective

measures to be taken in order to protect the public

interest.

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