# Appendix — Tull v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1987
- **Citation:** 481 U.S. 412

## Text

“ {) - Supreme Court, uS.
85-1259 rise
No. ; JAN 24 1986

ANIOL, JR.

CLERK
=.
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0063%3A03. Public record. Not legal advice.