Opposition Brief — Sasser v. United States

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Bupreme Court, US. |

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No. 92-1145 , MAR 5 = 1993

DRFICE OF THE CLERK |

OCTOBER TERM, 1992

MARSHALL CC. SASSER, PETITIONER

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

WILLIAM C. BRYSON

Acting Solicitor (rene “al

MYLES EF. FLINT

Acting As: stant Attorne 4 (rene

ANNES. ALM

ROBERT L. KLARQUIS

Vick! L. PLAU1

Attorneys

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Departn ent of Just ‘

Washington, D.C) 20580

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(202) dI4 ‘+a @

QUESTIONS PRESENTED

1. Whether the United States has authority under

Section 10 of the Rivers and Harbors Appropriation Act

oi 1899, 33 U.S.C. 408, to require petitioner to remove

barriers that he maintains across naturally occurring

streams that are subject to the ebb and flow of the tide.

2. Whether petitioner’s barriers are authorized under

a “grandfather” provision of the Corps of Engineers’

regulations, 33 C.F.R. 330.3(b).

3. Whether the Fifth Amendment requires the United

States to pay compensation for removal of the barriers.

(1)

TABLE OF CONTENTS

Page

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RTE AR ee 8

TABLE OF AUTHORITIES

Cases:

Boone v. United States, 944 F.2d 1489 (9th Cir. 1991) ..... 7

Fisher v. Danos, 595 F. Supp. 461 (E.D. La. 1984), aff’d,

ee Ue CE SIE, POIOD niccacdccnscassacnsndacsivancovecnsese 6

Kaiser Aetna v. United States, 444 U.S. 164 (1979) ......... 5,7

Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978)... 5

Phillips Petroleum Co. v. Mississippi, 484 U.S. 469

cas cascade as alsa exgbbdundsonkideeensoneneuns 5

State ex rel. Medlock v. South Carolina Coastal Council,

RU Ds caunsisgwaasiundbenansine 7

The Daniel Ball, 77 U.S. (10 Wall.) 557 (1871) ..........0.000.. 3,4

United States v. Alaska, 112 S. Ct. 1606 (1992) .......0000... 2

United States v. Cumberland Farms, Inc., 647 F. Supp.

1166 (D. Mass. 1986), aff’d, 826 F.2d 1151 (1st Cir.

1987), cert. denied, 484 U.S. 1061 (1988) ...............0..000.. 6

United States v. DeFelice, 641 F.2d 1169 (5th Cir.), cert.

a I ED oo, chs svcsansseusersansenscatvesconssons 5

United States v. Lamastus & Assocs., 785 F.2d 1349

I ie eae aoe) saan caxemiianbesbiesenionnons 6

United States v. Ray, 423 F.2d 16 (5th Cir. 1970) ........... 6

United States v. Stoeco Homes, Inc., 498 F.2d 597 (3d

Cir. 1974), cert. denied, 420 U.S. 927 (1975) ou... 5

Vieux Carre Property Owners, Residents & Assocs. v.

Brown, 875 F.2d 453 (5th Cir. 1989), cert. denied, 493

Se esd bicsnmiintaaseuandecabshaucuanes 6-7

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Constitution, statutes and regulations:

Sy tc: GN SUITE. “W - ocecicenesadinctcnceesmerccothiteonhisstntcrucatines

Federal Water Pollution Control Act, 33 U.S.C. 1251 et

seco tiesecsnt vase tecentanehdnanive sipesedeiidieduhaainneapntitin teccadieesaits

Rivers and Harbors Appropriation Act of 1899, 38 U.S.C.

SIE Ue GI: sacrcnnsaceplacenaeadesisesss wacbuaasesabinacsbicesekbinepniaseeanio

Fe Se ees SOI Kesuaccstasssepnctuccockeneevesuieasdniaceaselues

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33 C.F.R.:

Miscellaneous:

4 Waters and Water Rights (R. Beck ed. 1991) ...............

In the Supreme Court of the Cinited States

OCTOBER TERM, 1992

No. 92-1145

MARSHALL C. SASSER, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. E1-

22) is reported at 967 F.2d 993. The opinions of the

district court (Pet. App. A1-A17, C1-C22) are reported

at 738 F. Supp. 177 and 771 F. Supp. 720.

JURISDICTION

The judgment of the court of appeals (Pet. App. F1)

was entered on June 23, 1992. Petitioner filed a

petition for rehearing out of time, but it was accepted

by the court of appeals and denied on July 24, 1992.

Pet. App. G1-G2. The petition for a writ of certiorari

was filed on October 20, 1992. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

(1)

2

STATEMENT

Petitioner challenges the authority of the United

States under the Rivers and Harbors Appropriation

Act of 1899 (RHA), 33 U.S.C. 401 et seq., to require

petitioner to remove barriers he maintains across

certain waterways that pass through his property in

Georgetown County, South Carolina. The United

States District Court for the District of South

Carolina ordered petitioner to remove the barriers,

Pet. App. D1-D2, and the court of appeals affirmed, id.

at E1-E22.

1. The RHA broadly prohibits the placement of

unauthorized obstructions, including structures, in

“waters of the United States.” 33 U.S.C. 403. See

generally United States v. Alaska, 112 S. Ct. 1606

(1992). Section 10 of the RHA provides in relevant

part that:

The creation of any obstruction not affirmatively

authorized by Congress, to the navigable capacity

of any of the waters of the United States is

prohibited; and it shall not be lawful to build or

commence the building of any * * * structures in

any * * * canal, navigable river, or other water of

the United States, *** except on plans

recommended by the Chief of Engineers and

authorized by the Secretary of the Army * * *.

33 U.S.C. 403. The Secretary of the Army has defined

“navigable waters” for purposes of Section 10 to

include:

(T]hose waters that are subject to the ebb and flow

of the tide and/or are presently used, or have been

used in the past, or may be susceptible for use to

3

transport interstate or foreign commerce. A

determination of navigability, once made, applies

laterally over the entire surface of the waterbody,

and is not extinguished by later actions or events

which impede or destroy navigable capacity.

33 C.F.R. 329.4. Section 12 of the RHA authorizes the

Attorney General to seek an injunction ordering “the

removal of any structures or parts of structures

erected in violation of [Section 10].” 33 U.S.C. 406.

2. Petitioner has maintained wooden and steel

fences across the mouths of two naturally occurring

tidal streams that pass through his property and

empty into the Pee Dee River and the Intracoastal

Waterway. Petitioner concedes that the streams are

subject to the ebb and flow of the tide. In response to

complaints from recreational boaters, the Army

Corps of Engineers directed petitioner to remove the

barriers. Petitioner refused, and the United States

brought suit pursuant to the RHA to obtain an

injunction ordering removal of the structures. Pet.

App. Al-A6, E4-E6. The district court concluded on

motions for summary judgment that the streams at

issue are waters of the United States, zd. at A1-A17,

and that the United States is entitled under the RHA

to an injunction ordering removal of the barriers, id.

at C1-C22.

3. The court of appeals affirmed. Pet. App. E1-E22.

It rejected petitioner’s argument that this Court’s

decision in The Daniel Ball, 77 U.S. (10 Wall.) 557

(1871), an admiralty case holding that “navigable

waters” include waters capable of use for conducting

interstate commerce, id. at 563, sets forth the

exclusive test for navigability under the RHA. Pet.

4

App. E7-E13. “Finding the caselaw from other cir-

cuits persuasive,” the court concluded that the Corps’

longstanding “ebb and flow” test is also “a valid

means of determining the Corps’ jurisdiction over

tidal waters.” Jd. at E13.

The court also rejected petitioner’s argument that

the barriers are authorized under a “grandfather”

provision of the Corps’ regulations, 33 C.F.R. 330.3(b).

The court concluded that the provision is inapplicable

because it expressly applies only to structures that

cause no “interference with navigation.” Pet. App.

E13-E16. Finally, the court found no merit in

petitioner’s contentions that the Corps failed to

follow its own procedural requirements, id. at E16-

E18, and that the Fifth Amendment requires the

United States to pay compensation in connection with

removal of the barriers, id. at E19-E22.

ARGUMENT

Petitioner basically contends that the United

States has no authority to require him to remove his

obstructions to navigation, because the natural

streams he has obstructed are currently of use only

to recreational boaters. The court of appeals

correctly rejected petitioner’s arguments, its

decision does not conflict with any decision of this

Court or another court of appeals, and the issues

presented do not warrant further review.

1. Petitioner reasserts his argument that this

Court’s admiralty decision in The Daniel Ball, supra,

provides the exclusive test for determining nav-

igability under the RHA. Pet. 12-24. Petitioner cites

numerous cases endorsing The Daniel Ball’s so-

called “navigable in fact” test, but he fails to cite a

5

single case identifying that test as the exclusive one

for purposes of the RHA. The Army Corps of Engi-

neers has correctly concluded that its regulatory

jurisdiction under the RHA also extends to coastal

waters, such as the natural streams here, that are

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

329.4.

The Corps’ regulatory definition restates settled

law, which has long treated as navigable those waters

that are subject to the ebb and flow of the tide. See,

e.g., Phillips Petroleum Co. v. Mississippi, 484 U.S.

469 (1988) (land beneath tidal waters passed to States,

even if waters were not navigable in fact); Kaiser

Aetna v. United States, 444 U.S. 164, 171 & n.6 (1979)

(noting that tidal waters are subject to the Corps’

regulatory jurisdiction). See also, e.g.,4 Waters and

Water Rights 131 & n.83 (R. Beck ed. 1991) (“even

when not navigable in fact, waters subject to the ebb

and flow of the tide are considered as ‘navigable at

law’ for purposes of federal regulatory authority”).

As the court of appeals recognized, every court of

appeals that has addressed the issue has held that the

“ebb and flow” test is a “valid test for determining the

Corps’ jurisdiction over coastal waters.” Pet. App.

E11-E12. See United States v. DeFelice, 641 F.2d

1169, 1172-1175 (5th Cir.), cert. denied, 454 U.S. 940

(1981); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 749-

753 (9th Cir. 1978); United States v. Staeco Homes,

Inc., 498 F.2d 597, 608-610 (3d Cir. 1974), cert. denied,

420 U.S. 927 (1975). The issue does not warrant

further review.”

* Petitioner attempts to distinguish those cases (Pet. 16-18)

on the ground that they involve dredge and fill permits under

6

2. Petitioner also raises among his questions

presented (Pet. iii) the issue whether his ob-

structions are subject to a “grandfather” provision in

the Corps’ regulation that authorizes certain struc-

tures in existence prior to 1968. See 33 C.F.R.

330.3(b). Petitioner, however, provides no supporting

argument in the body of his petition. The court of

appeals correctly concluded that petitioner does not

qualify for the exemption, because the exemption is

limited to structures that cause no “interference

with navigation” and his barriers are specifically

designed to prevent boaters from using the streams.

Pet. App. E14-E16. See Fisher v. Danos, 595 F. Supp.

461, 466-467 (£.D. La. 1984) Getties completed before

cutoff fell outside exemption because they were

hazards to navigation), aff’d, 774 F.2d 1158 (5th Cir.

1985) (Table); see also United States v. Cumberland

Farms, Inc., 647 F. Supp. 1166, 1178-1180 (D. Mass.

1986), aff’d, 826 F.2d 1151, 1157-1160 (1st Cir. 1987),

cert. denied, 484 U.S. 1061 (1988); Vieux Carre

Section 10 and the Federal Water Pollution Control Act, and

not removal of an obstruction under Section 10. But that is a

distinction without a difference. All Section 10 cases present

tne same core grievance: the failure of the landowner to seek a

permit before taking action that might affect the waters. See,

e.g., United States v. Ray, 423 F.2d 16, 19 (5th Cir. 1970)

(navigability finding supports Corps’ jurisdiction over both

obstruction and dredge and fill permitting). Petitioner also

incorrectly contends (Pet. 27-28) that without “two public

termini” a waterway cannot be found navigable. Pet. 20-21.

Harbors provide an obvious example. See also United States v.

Lamastus & Assocs., 785 F.2d 1349, 1353 n.7 (5th Cir. 1986)

(“A waterway is no less capable of sustaining interstate

commerce because it only opens at one end.”); 33 C.F.R. 329.8

(canals open at only one end may be navigable).

7

Property Owners, Residents & Assocs. v. Brown, 875

F.2d 453, 464 (5th Cir. 1989), cert. denied, 493 U.S.

1020 (1990).

3. Petitioner additionally contends (Pet. 23-26)

that an order requiring that he remove his barricades

amounts to a compensable taking of his property

under the Fifth Amendment. He relies on this

Court’s decision in Kaiser Aetna, supra, and the

Ninth Circuit’s decision in Boone v. United States,

944 F.2d 1489 (1991). Those decisions, however, in-

volve a different issue. In both of those cases, the

question was whether the government could invoke

its navigational servitude to require public access to

a formerly enclosed Hawaiian lagoon that was private

property under state law. See Kaiser Aetna, 444

U.S. at 165-166; Boone, 944 F.2d at 1491-1492. The

question here, by contrast, is whether the govern-

ment has authority under the RHA to require

removal of unauthorized obstructions placed at the

mouth of navigable waters. Moreover, as the court of

appeals recognized, the waters at issue here are not

private property under state law. Petitioner has no

right under state law, comparable to the rights of the

Hawaiian owners of enclosed lagoons, to exclude

persons from the streams that pass through his lands.

Pet. App. E20. See State ex rel. Medlock v. South

Carolina Coastal Council, 346 S.E.2d 716, 719 (S.C.

1986).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

WILLIAM C. BRYSON

Acting Solicitor General

MYLES E. FLINT

Acting Assistant Attorney General

ANNE S. ALMY

ROBERT L. KLARQUIST

VICK! L. PLAUT

Attorneys

MARCH 1993