# Petition for Writ of Certiorari — Robinson v. United States

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1233%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 867

## Text

NO.

IN THE

Supreme Court Of Che Anited States

OCTOBER TERM 1992

ROY B. ROBINSON,

Petitioner,

Vv.
UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari To
The United States Court Of Appeals
For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

Sidney Farr *

1300 Main, Suit 1700
Houston, Texas 77002
713/658-8171

* Counsel of Record

James E. Ross
3209 Montrose Blvd.
Houston, Texas 77006

Attorneys For Petitioner

Alpha Law Brief Company ® Houston, Texas @ (713) 981-9000 © 1-800-981-9001

i

QUESTION PRESENTED

Whether the final judgment on the merits in an
action for declaratory and related coercive relief is res
judicata of a compulsory counterclaim that the defendant
failed to assert in that action.

(A

il

LIST OF ALL PARTIES TO THE PROCEEDING

All of the parties in the United States Court of
Appeals for the Fifth Circuit are listed in the caption.

ill

TABLE OF CONTENTS

Page
fay eR oy 2) i
LIST OF ALL PARTIES TO THE PROCEEDING . ii
pp ee ey ) iil
ES Er l
eee Ue RPEEPEC LION 0 ww we ee |
STATUTES AND REGULATIONS INVOLVED ... 2
umeueeeee oe bias CASE ww... ee ee ees 2
REASONS FOR GRANTING THE WRIT ........ 4

Cr 12

1V

TABLE OF AUTHORITIES

Cases

American Mills Co. v. American Surity Co.

Se Ms PO Ae eh Chae ee ERE OS

Crutcher v. Aetna Life Ins. Co., 746 F.2d

i AR. ee eee ar era er ar are

Dillard v. Security Pacific Brokers, Inc.,

Sod Fae Grr, CC, Be) bs se ew ss

Federated Dept. Stores, Inc. v. Moitie,

ek SE es Ae a ao a ee ee es

Horn &. Hardart Co. v. Nat’l. R.R. Passenger

Corp., 69 F. Supp. 1258 (D.D.C. Cir. 1987) ..

Horn &. Hardart Co. v. Nat’l. R.R. Passenger

Corp., 843 F.2d 546 (D.C. 1988)..........

In-Sink-Erator MFG. Co. v. Waste King Corp.,

346 F.20, 246, (7 Th Cir, 1965) . 2. cc ees

Syril v. Knoll International 748 F.2d

oan © OG Fs 66 EEE

UNITED STATES CODE

SS UD OE 8 Ca ase eee ee ee

OF BBA Se i ee

._ 2. © @& @

Vv

SS OS. © TRI ook 8 6 ie ae a 8 ae Oe ees 3
SB USC. BUSTRR) jw wc ce cece eee nenes 2
(igh Rem Be) *) a ee ro 3
Gh fede Rt ee ee ee ee 3
» SIR Moat Qo) . Serer eer ee eer eee ee sae 3
5 Gt Rade > eee meer ar ee ete ae eae ae Bee 4
y ERS al bs Se eee ee ee eee, 4,7
WE UES. © PPE ove s esis esis Specs sok eres 28 3
Cnt e oom BR) 6) h) ee 3

FEDERAL RULES OF CIVIL PROCEDURE

Rule 120)... . 2s Lee ee eee ee es 2, 3, 8, 10
eB gc oo es 8 eee ee ee REE 10
ON NR gs bls, phe ae, ee 2, 3, 4, 6, 7, 9, 10
ee ie we en hee SAN wee 2, 10

CODE OF FEDERAL REGULATIONS

eae he a a Ee 2

SECONDARY AUTHORITIES

NO.

IN THE

Supreme Court Of Che United States

OCTOBER TERM 1992

ROY B. ROBINSON,
Petitioner,
Vv

UNITED STATES OF AMERICA,

Respondent.

Petition For A Writ Of Certiorari To
The United States Court Of Appeals
For The Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the court of appeals (App. la) is
unreported. The district court gave no opinion separate from
its judgment, which is likewise unreported (App. 3a).
Neither did the district court in the earlier related declaratory
judgment action, but it did make findings and conclusions
(App. 8a) ancillary to its judgment (App. 7a).

BASIS FOR JURISDICTION

The judgment of the court of appeals was entered on
April 8, 1993 (App. 2a). A timely petition for rehearing was
denied on May 3, 1993 (App. 23a). This Court has
jurisdiction to review the judgment under 28 U.S.C. §
1254(1).

2
STATUTES AND REGULATIONS INVOLVED

This case involves 28 U.S.C. §§ 2201 and 2202, 33
U.S.C. §§ 403, 407, 1311(a), 1319(b), 1344(s)(3),
1344(s)(5) and 33 CFR 323.2. It also involves Rules 12(b),
13(a), and 16(e) of the Federal Rules of Civil Procedure.
These authorities appear verbatim in the appendix, beginning
at App. 25a.

STATEMENT OF THE CASE

In 1977 under 33 U.S.C. §§ 403 and 1311 the United
States Army Corps of Engineers issued Roy Robinson a
permit to dredge a boat slip on wetlands he owned riparian
to Dickinson Bayou in Galveston County, Texas (89 R. 127;
84 R. 85, 100, 167 and unnumbered record page between 10
and 11).” In 1978 a dispute came up about whether
Robinson had violated that permit by dredging a slip outside
the bounds of the permit (84. R. 77-79, 167). To resolve the
protracted dispute Robinson sued the government in 1984 in
the federal district court in Galveston (Civil Action G-84-35)
for a declaratory judgment that he hadn’t violated the 1977
permit and for a mandatory injunction directing the Corps to
grant him another permit to maintenance dredge the channel
leading up to the disputed slip and to dispose the dredge spoil
in navigable waters (84 R. 6, 11, 182, 187). Although the
government filed no answer or counterclaim, it did file a
motion under Rule 12(b) of the Federal Rules of Civil
Procedure, requesting dismissal of the case for lack of
jurisdiction of the subject matter and for failure to exhaust
administrative remedies, all couched in the alternative as a

“"84 R" refers to the record in Robinson's declaratory judgment
action filed in 1984, and "89 R" refers to the government’s injunction suit
(this case) filed in 1989.

3

motion for summary judgment (84 R 229-234). The district
court expressly rejected the Rule 12(b) grounds alleged for
dismissal and overruled the government’s motion for
summary judgment (84 R 196-199).

In 1986 after trial on the merits under a joint pretrial
order signed by the attorneys for both parties (84 R 229-234)
the district court rendered judgment that Robinson had
violated the permit and so dismissed his suit (84 G. 255,
256). According to the supporting findings and conclusions
the violation was that Robinson had dredged a slip in an area
not included in the permit (84 R. 256, 257).

In 1989 the government filed the present action (G-
89-298) in the same federal district court under 33 U3... §
1344(s)(3) and (5), authorizing suit for violation of a
dredging permit, and 33 U.S.C. § 1319(b), authorizing suit
for violation of a spoil discharge permit (84 R. 1). Besides
those pleaded statutes the district court also had original
jurisdiction over this action under 28 U.S.C. § 1345 and 33
U.S.C. §§ 403, 406 and 1311(a). The complaint prays that
Robinson be prohibitively enjoined from any further dredging
and mandatorily enjoined to restore the illegally dredged
wetland area and that he be fined $10,000 for each day of
violation (89 R. 12). The averred basis for this relief was
the 1986 judgment in the earlier suit (89 R 8, 9).

Robinson’s answer included the affirmative defense
that same 1986 judgment barred the government from
bringing the present action, because that earlier judgment
was res judicata of the government claims (89 R 10-21).
The basis alleged for this proposition was that the
government’s causes of action to enjoin the dredging and
impose a fine were compulsory counterclaims in the first suit
under Rule 13(a) of the Federal Rules of Civil Procedure,
because they were based on the same occurrence as the

4

claims that Robinson asserted in that first suit.
Consequently, Robinson contended that the government was
required to assert those enforcement claims, if ever, in that
earlier declaratory judgment action (89 R. 20).

Nevertheless the district court rendered judgment in
this second suit mandatorily enjoining Robinson to restore the
wetland area he had improperly dredged (App. 3a). Ina
very short opinion without elaboration the court of appeals
affirmed the district court’s judgment (App. la).

REASONS FOR GRANTING THE WRIT

This case presents an important question never
determined by the Supreme Court about a diametric
conflict between the federal declaratory judgment statutes
(28 U.S.C. §§ 2201 and 2202) and Rule 13(a) of the
Federal Rules of Civil Procedure. The question is
whether a final judgment in an action for declaratory
relief based on 28 U.S.C. § 2201 and related coercive
relief not based on 28 U.S.C. § 2201 is res judicata of a
Rule 13(a) compulsory counterclaim, which the defendant
failed to assert in the declaratory judgment action.

This is a little case but a big question. In a simple
fact situation it gives the Court a chance to resolve a clear
conflict between a federal statute and a federal rule, which
will probably come up hereafter in all kinds of different
cases. There is no conflict between the decisions of different
circuits, because the Fifth Circuit’s decision here seems to be
the first to decide the issue. However, there is certainly a
conflict in principal between the opinion of the district court
in Horn &. Hardart Co. v. Nat’l. R.R. Passenger Corp. , 69
F. Supp. 1258 (D.D.C. Cir. 1987) and the Fifth Circuit’s
decision in this case.

5

Unfortunately, neither the court of appeals nor the
district court wrote an opinion that went into the merits of
this question. Nevertheless, the petitioner Robinson has
consistently maintained both in the district court as well as
the court of appeals that the 1986 judgment of the district
court in Roy B. Robinson v. United States of America (G-
84-255) operates as res judicata to preclude the government
from obtaining an injunction in the present action, which was
not filed until 1989 (G-89-298). The rejection of that
contention by both of the lower courts was serious error,
which has obviously affected the outcome of the litigation so
far.

“For a prior judgment to bar an action on the basis of
res judicata, the parties must be identical in both suits, the |
prior judgment must have been rendered by a court of
competent jurisdiction, there must have been a final judgment
on the merits and the same cause of action must be involved
in both cases . . . [T]he principal test for comparing causes
of action is whether the primary right and duty or wrong are
the same in each action." Dillard v. Security Pacific
Brokers, Inc., 835 F.2d 607, 608 (Sth Cir. 1988). These
basic criteria are probably accepted in all courts.

The present case clearly meets the first three of the
four tests just recited. But what about the fourth test? Was
the same cause of action involved in both Robinson’s 1984
declaratory judgment suit (G-84-35) and the government’s
1989 injunction suit (G-89-298)? | G-84-35 was Robinson's
suit for a judgment (1) declaring that he hadn’t violated his
1977 dredging permit by digging an unauthorized slip
without authorization of the Corps and (2) mandating the
Corps to grant him a permit to maintenance dredge the
channel to that slip and dispose of the dredging spoil (84 R.
187, 182). The government filed no counterclaim in that
action, in which after trial on the merits the district court

6

rendered judgment that Robinson had violated the permit and
accordingly dismissed the case (A 7a). The government
filed the present action (G-89-298) to prohibitively enjoin
Robinson from further dredging the slip and channel and to
mandatorily enjoin him to restore the slip to its original state
(R. 12). The government’s claim asserted in this case is
obviously not the same as Robinson’s claim in the first case,
which the G-84-35 judgment expressly adjudicated. So why
should the G-84-35 judgment be res judicata of the G-89-298
claim for an injunction? Because Rule 13(a) of the Federal
Rules of Civil Procedure extends the scope of res judicata to
preclude litigation in a second suit not only of matters that
were expressly raised and adjudicated in the first suit
between the same parties, but also matters that should have
been raised and adjudicated in the first suit.

"A final judgment on the merits of an action
precludes the parties or their privies from relitigating issues
that were or could have been railed in that action."
Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398
(emphasis supplied).

In pertinent part Rule 13(a) of the Federal Rules of
Civil Procedure provides:
"(a) Compulsory
Counterclaims. A _ pleading
Shall state as a counterclaim
any claim which at the time of
serving the pleading the pleader
has against any opposing party,
if it arises out of the
transaction or occurrence that
is the subject matter of the
opposing party’s claim and
does not require for its
adjudication the presence of

q

third parties of whom the court
cannot acquire jurisdiction."
(emphasis supplied).

While the rule doesn’t expressly say so, the legal
consequence of the government’s failure to assert a
compulsory counterclaim in the first suit is that the
unasserted counterclaim is merged into the judgment in the
first suit, so that first judgment is res judicata that the
government’s unasserted compulsory counterclaim has been
denied. Dillard v. Security Pacific Brokers, Inc., 835 F.2d
607, 608 (Sth Cir. 1988); Crutcher v. Aetna Life Ins. Co.,
746 F.2d 1076 (Sth Cir. 1984). See also Advisory
Committee Note 7 to Rule 13a, citing American Mills Co. v.
American Surety Co., 260 U.S. 360.

The government’s causes of action for an injunction
and fine were compulsory counterclaims in G-84-35, because
they arose out of the same occurrence as the plaintiff
Robinson’s claims for a declaratory judgment that he hadn’t
violated his dredging permit and for a mandatory injunction
ordering the Corps to issue him a maintenance dredging
permit. Therefore, even though those compulsory
counterclaims weren’t asserted in G-84-35, they’re barred by
res judicata and Rule 13(a) from being asserted in this later
action. Consequently, Rule 13(a) required the district court
to dismiss the government’s complaint in this case.

But this dismissal mandate of the federal \rule runs
head on into 28 U.S.C. § 2202, which says:

“Further necessary or proper
relief based on a declaratory
judgment or decree may be
granted, after reasonable notice
and hearing, against any

8

adverse party whose rights
have been determined by such
judgment."

Under that statute any party to a declaratory judgment
may bring a subsequent action (or at least a subsequent
motion in the same action) for any appropriate relief
warranted by the declaratory judgment. That includes claims
that the defendant could have asserted, but didn’t, in the
declaratory judgment action itself. So which controls? The
federal rule, which says the government can’t bring this
second suit for an injunction or the federal statute, which
Says it can.

According to one circuit the above statute authorizes
the defendant in a suit for declaratory judgment only to
prosecute in a later suit a claim based on the declaratory
judgment, which in the absence of that statute would be
buried under the judgment by res judicata. Horn &. Hardart
Co. v. National R.R. Passenger Corp., 843 F.2d 546, 549
(D.C. Cir. 1988). However, if in addition to a declaration
of rights the complaint in the first action requests "coercive
relief," then the Horn court of appeals acknowledged without
considering or deciding that the judgment in the first case
might be res judicata of any counterclaim arising out of the
same transaction as the principal claim involved in the first
suit, which the defendant failed to assert in that earlier
action. Horn &. Hardart Co. v. National R.R. Passenger
Corp. , 843 F.2d 546, 549 (D.C. 1988). The opinion of the
Horn district court was stronger, reasoning that res judicata
would bar such a counterclaim unless the defendant
succeeded in obtaining dismissal of the first case by a Rule
12(b) motion. Horn &. Hardart Co. v. Nat'l. R.R.
Passenger Corp., 659 F. Supp. 1258, 1265 (D.D.C, 1987).

9

In this connection, comment d of section 33 of the
Restatement (Second) of Judgments (1982) says:

"Pleaders sometimes interpolate
declaratory prayers redundantly
in standard actions, but this
should not produce differences
in the res judicata
consequences of those actions.
Thus a pleader demanding
money damages may also ask
for a corresponding
declaration. For res judicata
purposes the action should be
treated as an adversary
personal action concluded by a
personal judgment with the
usual consequences of merger,
bar, and issue preclusion. The
same applies to a prayer for a
declaration which would be the
substantial equivalent of a
judgment of _ rescission or
reformation. So also an action
to adjudicate interests in
property, such as an action to
quiet title, or to establish a
status such as divorce, may be
cast in declaratory form. This
should not alter the res judicata
effects of the judgments."

The holding in Horn was that Rule 13(a) and res
judicata didn’t apply to the facts of that particular case,
because the defendant in the first Horn case never filed an
answer or other pleading but instead only filed a Rule

10

12(b)(6) motion to dismiss for failure to state a claim, which
was granted. Both Horn courts held that such a motion is
not a “pleading,” that Rule 13(a) requirements for
compulsory counterclaims apply only to pleadings, and
therefore that Rule 13(a) didn’t apply. By contrast the
district court in the first Robinson case rejected the
government’s Rule 12(b) motion to dismiss (84 R 196-199)
following which the case was tried and adjudicated on the
merits under a joint pretrial order signed by the attorney for
the government as well as the attorney for Robinson. (84 R
229-234; 84 G 255, 256).

Under Rule 16(e) of the Federal Rules of Civil
Procedure the pretrial order "shall control the subsequent
course of the action." A pretrial order is a pleading. Syrie
v. Knoll International 748 F.2d 304 (Sth Cir. 1984); In-Sink-
Erator Mfg. Co. v. Waste King Corp, 346 F.2d, 248, 251
(7th Cir. 1965), cert. denied 382 U.S. 835.

Therefore, while the Horn decisions don’t apply, but
the rationale in the Horn district court opinion does. So also
does Rule 13(a). It’s apparent from the latter opinion that
when a suit for declaratory judgment is combined with a
claim for coercive relief, then the ordinary rules of res
judicata and compulsory counterclaim apply, and 28 U.S.C.
§ 2202 don’t apply. That 1987 opinion also noted that the
Horn action "seems the first federal case to confront directly
the issue." Horn &. Hardart Co. v. Nat’l. R.R. Passenger
Corp., 659 F. Supp. 1258, 1265 (D.D.C, 1987). However,
the Horn courts didn’t need to decide the issue, because the
first Horn action for declaratory and coercive relief was
dismissed under Rule 12(b)(6) for failure to state a claim.

In the first action brought by Robinson, he not only
requested a declaratory judgment that he hadn’t violated the
dredging permit, but he also asked that the Corps be ordered

1]

to issue him a maintenance dredging permit. The latter is a
request for coercive relief.. That being so, the ordinary
rules of res judicata and compulsory counterclaim should
apply to that suit for declaratory judgment. Since Robinson
asked for coercive relief in the first suit, the government’s
claim for an injunction against Robinson was a compulsory
counterclaim in the first suit. Because it wasn’t asserted in
that action, it’s barred by res judicata from assertion in this
action. If that’s not the law, then it should be; and this is the
Court and this is the time to make it the law. The buck
stops here.

CONCLUSION

For the reasons given, the petition for certiorari
should be granted.
Respectfully submitted,

Sidney Farr *

1300 Main, Suite 1700
Houston, Texas 77002
713/658-8171

* Counsel of Record

James E. Ross
3209 Montrose Blvd.
Houston, Texas 77006

Attorneys For Petitioner

APPENDIX

la

APPENDIX

U.S. COURT OF APPEALS
FILED

APR 08 1993

RICHARD E. WINDHORST, JR.
CLERK

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 92-7360

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY B. ROBINSON,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas
(CA-G-89-298)

2a

Before REYNALDO G. GARZA, WILLIAMS, and JONES,
Circuit Judges. '

PER CURIAM:

Having carefully studied the briefs and contentions of
the parties in light of applicable law, the court finds no
reversible error of fact or law in this case. The judgment of
the district court is accordingly affirmed. See Fifth Circuit
Local Rule 47.6.

1. Local Rule 47.5 provides: "The publication of opinions that have
no precedential value and merely decide particular cases on the basis of
well-settled principles of law imposes needless expense on the public and
burdens on the legal profession." Pursuant to that Rule, the court has
determined that this opinion should not be published.

3a

|

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
ENTERED

MAY 12 1992

Jesse E. Clark, Clerk

By Deputy: /s/ illegible

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

UNITED STATES OF §
AMERICA §
VS. § CIVIL NO. G-89-298
ROY B. ROBINSON §

ORDER

Before the Court is the application filed by the United
States of America seeking injunctive relief against Roy B.
Robinson, Defendant. The Court, having considered the
application is of the opinion that it should be, and it is
hereby, GRANTED.

The Court finds that Defendant has destroyed
wetlands as a result of unauthorized dredging activity on and
adjacent to property owned by him in Galveston County,
more particularly described as Lots 1A, 2 and 2A in Block
87 of the San Leon Farm Home Tracts. The area destroyed
by Defendant is particularly illustrated as the "barge slip" on
the drawing attached hereto as Exhibit A, incorporated by
reference herein.

4a

The Court further finds that an injunction should issue
to permanently enjoin Defendant from any further work or
discharge in the navigable waters and the wetlands of the
United States located at and adjacent to his property, and
further to direct Defendant to restore the wetland area
illegally dredged and filled to its original condition.

It is, therefore, the ORDER of this Court that
Defendant be, and he is hereby, PERMANENTLY
ENJOINED from any further work or discharge in the
navigable waters or wetlands of the United States located at
or adjacent to his property as hereinabove described.

It is further ORDERED that Defendant be, and he is
hereby, DIRECTED TO RESTORE the wetland area found
by this Court to be illegally dredged and filled, to its original
condition and elevation.

It is further ORDERED that the fill material to be
used by Defendant to restore the area to its original
elevations shall consist of clean loam material, as that term
is recognized in the industry to mean a loose soil of mixed
sand, clay, and silt, free from any debris or contaminants of
any kind.

It is further ORDERED that Defendant shall deposit
a sufficient amount of fill material to restore the area to the
same sloping level as that of the adjacent wetland from the
shoreline to the end of the dredged area, which is
approximately 275 feet from the north end of the dredged
area.

It is further ORDERED that after the area has been
filled, Defendant shall plant the entire filled area with
Spartina Alterniflora, commonly known as smooth cordgrass,
in a gridlock pattern at intervals of three feet.

Sa

It is further ORDERED that Defendant shall continue
to replant the area each year during the month of April until
at least seventy percent of the restored area is covered with
live Spartina Alterniflora.

It is further ORDERED that Defendant shall permit
a representative from the United States Army Corps of
Engineers to be present at any and all times during the
performance of the restoration for the sole purpose of
observation.

It is further ORDERED that Defendant shall procure
the Spartina Alterniflora plants from the adjacent wetlands in
a manner which will not result in extensive harm to the
adjacent wetlands.

It is further GRDERED that ihe fill work and first
planting herein ordered shall be completed on or before
November 1, 1992.

It is further ORDERED that Defendant’s failure to
comply with this Order in any of its particulars, will subject
Defendant to the contempt powers of this Court to the full
extent permitted by law.

DONE at Galveston, Texas, this _12th_ day of _
May _., 1992.

Hugh Gibson
HUGH GIBSON
UNITED STATES DISTRICT JUDGE

Re a ee
aa en,
ee =e, acs ®~e, ie j
oe
a —_ nee
aca
— a
, r Oe ee
ey oe : /

LEGEND
M-MARSH VEGETATION-INTERTIDE
TTIDAL FLAT
S-SHALLOW WATER
C-CREEK CHANNEL
H-HIGH MARSH
U-UPLAND VEGETATION
D-DIKE SPOIL DISPOSAL AREA
E-ERODED SPOIL
I-INDUSTRIAL SITE
B-BUILDING
R-ROAD

DICKINSON BAYOU

MARLIN MARINE a) /

/
be / |
E ESPEY. HUSTON & ASSOCIATES. INC
H ENGINEERING & ENVIRONMENTAL CONSULTANTS

FIG 2

0 100 200
SCALE LAND CLASSIFICATION MAP

OF THE PROJECT AREA
(from 1980 CIR Aerial Photography j

7a

CLERK U S DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
FILED

MAR 25 1986

JESSE E. CLARK, CLERK

BY DEPUTY /s/ Mamie Bergan

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

ROY B. ROBINSON
VS.

THE UNITED STATES
OF AMERICA

C.A. G-84-35

———— Ss Sw

FINAL JUDGMENT

In accordance with the Court’s findings of fact and
conclusions of law, it is ORDERED,, ADJUDGED and
DECREED that plaintiff violated the Army Corps of
Engineers per No. 11/06, and this cause of action is hereby
DISMISSED.

This is a FINAL JUDGMENT.

DONE at Galveston, Texas, this the 25th __ day

of March , 1986.
Hugh Gibson
UNITED STATES DISTRICT JUDGE
GOVERNMENT
EXHIBIT

—

8a

CLERK U S DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS
FILED

MAR 25 1986

JESSE E. CLARK, CLERK

BY DEPUTY /s/ Mamie Bergan

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON, DIVISION

ROY B. ROBINSON
VS.

THE UNITED STATES
OF AMERICA

C.A. G-84-35

eee ee”

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Plaintiff, Roy B. Robinson d/b/a/ Marlin Marine,
seeks a declaratory judgment pursuant to 28 U.S.C. §2201
that he has not violated a permit issued by the United States
Army Corps of Engineers ("Corps"). The parties tried the
case before the Court on 10-11 February 1986. Having
considered all evidence and argument presented, the Court
now makes the following findings of fact and conclusions of
law pursuant to Fed.R.Civ.P. 52(a).

Findings of Fact

FR On 6 December 1976 plaintiff applied to the
Corps for a permit to dredge a channel and build a bulkhead
at Dickinson Bayou, and the wetlands adjacent to it, in
Galveston County, Texas.

9a

2. On 9 March 1977 the Corps issued permit No.
11706 to plaintiff. The permit expired on 31 December
1980. The permit allowed plaintiff to perform "work in or
affecting navigable waters of the United States...pursuant to
Section 10 of the Rivers and Harbors Act of March 3, 1899
(33 U.S.C. 403)" and to "[d]ischarge dredged or fill material
into navigable waters... pursuant to Section 404 of the Federal
Water Pollution Control Act [°33 U.S.C. §1344]."

3. The permit provides:
: General Conditions

8. That all activities identified and
authorized herein shall be consistent with the terms and
conditions of this permit: and that any activities not
specifically identified and authorized herein shall constitute
a violation of the terms and conditions of this permit which
may result in the modification, suspension or revocation of
this permit, in whole or in part...or in the institution of such
legal proceedings as the United States Government may
consider appropriate ..... (Emphasis added).

4. Specifically, the permit authorized plaintiff to
"dredge a barge slip and channel and construct a steel pile
bulkhead and backfill." The permit specifies that all
activities were to be in accordance with the map and two
drawings attached thereto and "incorporated in and made a
part of the permit."

The first attached drawing, _ entitled
"Amendment to 11706. Location Map," shows the proposed
channel, slip, bulkhead, shop and spoil areas. The map also
shows a wetlands area adjacent to the shop area and spoil
areas. The drawing indicates that no spoil was to be placed
in this wetlands area ("no spoil area").

10a

6. Plaintiff dredged in the no spoil area after
January, 1976, but before the permit expired.

Conclusions of Law

l. The Court has jurisdiction pursuant to 28
U.S.C. §1331 and 5 U.S.C. §704 because the Court is
reviewing the scope of a Corps permit issued pursuant to 33
U.S.C. §§403, 1344.

2. The parties agree and the Court concludes that
areas in question are navigable waters and wetlands within
the jurisdiction of the Corps.

3. The permit did not authorize plaintiff to dredge
in the no spoil area.

4. Plaintiff argues that because the map only
indicated that no spoil could be placed on the area, and the
words "no dreding” were not added, he did not violate the
permit. Plaintiff’s argument invites the Court to construe the
permit in direct contradiction to permit General Condition
l.a.. which states that all activity that is not specifically
authorized is prohibited. The Court declines plaintiff's
invitation and holds that the permit means what it says:
activity that is not specifically authorized is prohibited.

» Plaintiff argues estoppel and laches against the
Corps’ claim of a violation of the permit. Plaintiff contends
that before the Corps issued the permit and during the
dredging, agents of the Corps saw the dredged no spoil area
delineated with stakes and flags. The Corps never attempted
to stop the dredging. Plaintiff essentially argues that the
Corps’ silence it showed that he did not violate the permit

lla

and 2) led him to believe that he had not violated the permit.
Plaintiff also argues laches--too much time has passed for the
government to argue a violation.

The Corp holds that the silence of the Corps does not
estopp it from arguing a violation of express terms of the
permit. See Utah Power & Light Co. v. United States, 243
U.S. 389, 409 (1917); Hicks v. Harris, 606 F .2d 65, 68-9
(Sth Cir. 1979); United States v. Florida, 482 F .2d 205, 209
(Sth Cir. 1973); Deltona Corp. v. Alexander, 682 F .2d 888.
891-92 (11th Cir. 1982); Lavin v. Marsh, 644 F .2d 1378,
1382-83 (9th Cir. 1981). Furthermore, laches would not
prevent the Corps from arguing that plaintiff violated the
permit, although it might prevent the Corps from taking
punitive action.

6. Accordingly, it is ORDERED, ADJUDGED
and DECREED that plaintiff violated the Army Corps of
Engineers permit No. 11706.

Te If any of the foregoing findings of fact
constitute conclusions of law, they are adopted as such. If
any of the foregoing conclusions of law constituted findings
of fact, they are adopted as such.

DONE at Galveston, Texas, this the 25th day
of March , 1986.

/s/ Hugh Gibson
UNITED STATES DISTRICT JUDGE

eS

12a

CLERK, U S DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
FILED
JUN 4 1985
JESSE E. CLARK, CLERK
BY DEPUTY /s/ Mamie B

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION

ROY B. ROBINSON )

) CONSOLIDATED
VS. )

) C.A. G-84-35

THE UNITED STATES ) w/C.A.G-84-325
OF AMERICA, ET AL )

ORDER

Before the Court are defendants United States of
America and the State of Texas’ motions to dismiss or
alternatively, motions for summary judgment, and the State
of Texas’ motion to remand filed in Civil Action G-84-325.

I.

The State of Texas alleges that plaintiff Roy Robinson
built and operated his marine salvage facility on Texas
Coastal Public Land without authorization from the State.
Pursuant to the Texas Coastal Public Lands Management
Act, TEX.NAT.RES.CODE ANN. Chapter 33, the State
instituted enforcement action against Robinson in the 98th
Judicial State District Court in Travis County. On January
23, 1984, Robinson initiated Civil action G-84-35 in this
Court, seeking a declaratory judgment against the United

13a

States and the State of Texas. On February 1, 1984,
Robinson removed the state proceeding to the federal court
in Austin, and the State moved to remand. The federal court
in Austin granted Robinson's motion to transfer the State’s
case to this Court (Civil Action G-84-325), where his
declaratory judgment action is pending. By order dated
March 7, 1985, this Court consolidated both cases because
of similar issues of law and facts.

The State’s cause of action against Robinson is
predicated upon the TEX.PARK & WILDLIFE CODE,
Chapter 86, and the Texas Coastal Public Lands Management
Act, a statute designed to protect the natural resources and
environmental interests of the State. Any constitutional or
federal question issues can only be raised by way of
Robinson’s defenses in the State enforcement action, and,
therefore, do not constitute basis for removal. Franchise Tax
Board of California v. Construction Laborers Vacation Trust
for Southern California, 463 U.S. 1 (1983).

The legality of plaintiffs activity under State law is
governed by a detailed statutory and regulatory scheme. See
TEX.NAT.RES.CODE, Chapter 33; 31 TEX.ADM.CODE
§§155.1-155.9. The environmental impact of plaintiff’s
activities upon Texas submerged lands implicates important
State interests which meet the criteria for absention. See
Younger v. Harris, 401 U.S. 37 (1971); Middlesex County
Ethics Committee v. Garden State Bar Association, 457 U.S.
423 (1982); Women’s Community Health Center of
Beaumont, Inc. v. Texas Health Facilities Comm. , 685 F .2d
974, 978 (Sth Cir. 1982). Adequate opportunity existed for
Robinson to raise his federal law defenses in the State
proceeding, which was ongoing at the time he attempted
removal.

l4a

Accordingly, the Court GRANTS the State’s motion
to dismiss in G-84-35 and REMANDS G-84-325 to the State
District Court.

Il.

Defendant United States alleges that 1) plaintiff's
jurisdictional theory is improper and 2) plaintiff has not
exhausted administrative remedies.

Plaintiff has amended his complaint, asserting
jurisdiction under the Administrative Procedure Act, 5
U.S.C. §702. Therefore, the United States’ first ground for
dismissal is MOOT.

The United States contends that although plaintiff
initially constructed and dredged his facility under a valid
Corps of Engineers permit, he performed additional dredging
not authorized by such permit. The United States claims that
plaintiff failed to complete an after-the-fact permit
application, and, therefore, has not exhausted available
administrative remedies to legitimize his unauthorized
activity. Plaintiff, on the other hand, maintains that he did
not perform unauthorized work, and, hence, did not need an
after-the-fact application.

Title 33 C.F.R. §326.3(d), governing unauthorized
activity and acceptance of an after-the-fact application,
provides that:

"If the responsible party fails to submit
an application...within a reasonable time
period, the district engineer may proceed on
his own initiative with a determination of
whether the activity is in the public interest.
The determination will be made in accordance

ADD he Ce BA Rie he le Caae

Sa se een a Se ee NS tale

RO Ag! sad cma conta iN

15a

with appropriate procedures..." (Emphasis
Added)

Thus, an after-the-fact application is not absolutely necessary
before the Corps of Engineers enters a final decision
directing remedial work. Accordingly, the Court finds the
United States’ "exhaustion" argument without merit.

The Court further finds that the only issue in this case
is whether plaintiff has violated his federal permit. A
resolution of this fact issue will determine whether the
Corps’ decision is arbitrary or capricious under the
Administrative Procedures Act.

In summary, the Court ORDERS as follows:
he defendant United States’ motion for summary
judgment is DENIED;

as defendant State of Texas’ motion to dismiss is
GRANTED;
3. the State of Texas’ motion to remand C.A. G-

84-325 is GRANTED;

4. the Court’s consolidation order of March 7,
1985 is VOID; and

¥ C. A. G-84-325 is REMANDED to the 98th
Judicial District Court, Travis County.

DONE at Galveston, Texas, this the 4th day
of June , 1985.

Hugh Gibson

UNITED STATES DISTRICT JUDGE

16a

CLERK U S DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
FILED
FEB 11 1986
JESSE E. CLARK, CLERK
BY DEPUTY: /s/ Mamie Bergan

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

ROY B. ROBINSON §

§

vs § CIVIL ACTION NO.
§ G 84-35

THE UNITED STATES §

OF AMERICA §

JOINT PRETRIAL ORDER
Appearance of Counsel
Plaintiff, Roy B. Robinson, is represented by Richard

Parker, 1550 Castle Court, Houston, Texas 77006,
telephone (713) 521-0247.

Defendant, The United States of America, is
represented by Robert Darden, Assistant United States
Attorney, 515 Rusk Avenue, Suite 12000, Houston, Texas
77002, telephone (713) 229-2691.

17a

Statement of the Case

On or about March 8, 1977, Plaintiff Roy B.
Robinson was issued U.S. Army Corps of Engineers permit
no. 11706 to build a bulkhead as well as dredge a channel at
his commercial docking facility at Dickinson Bayou,
Galveston County, Texas. This he proceeded to do on about
January 1, 1978. His permit allowed him to dredge up to
55,000 cubic years of spoil by hydraulic dredge and dragline
for the construction of a docking facility and channel and
also to construct a steel sheet pile bulkhead. The dredge
material was placed, as per the permit, behind the bulkhead
and in a disposal area on high ground.

During the process of dredging, a Corps or Engineers
representative visited the site and found some run-off at the
disposal site. A cease and desist order was issued to Mr.
Robinson. Mr. Robinson, in cooperation with the Corps,
cleaned up the run-off to the Crops’ stipulation and
satisfaction and the cease and desist order was lifted.

In approximately November of 1978 during an on-site
inspection, field investigators for the Corps maintained that
Mr. Robinson exceeded the scope of his permit authority.
After a further investigation in 1979, a recommendation was
forwarded from the Permit Enforcement Branch of the Corps
of Engineers to the Legal Section that legal action be taken
against Mr. Robinson for violating his permit. The legal
branch has never referred that recommendation to the
Department of Justice for action and the matter has been
pending with the Corps’ Legal Section in Galveston since
1979. Mr. Robinson has steadfastly denied that he violated
his permit in any way.

Mr. Robinson brought this action in early 1984 under
the Declaratory Judgment Act seeking a _ judicial

18a

determination that he has not violated the Corps of Engineers
permit no. 11706. The only issue before this Court as per
this Court’s Order of June 4, 1985, is whether the Plaintiff,
Roy B. Robinson, violated the Corps of Engineers’ permit
no. 11706.

Jurisdiction

This Court has jurisdiction over the subject matter of
the parties hereto by virtue of the authority granted it under
28 U.S.C. §1357 and 28 U.S.C. §2201 as well as 33 U.S.C.
§403 and §407.

Motions
There are no motions pending at the present time.
Contentions of the Parties

The Plaintiff, Roy B. Robinson, claims that his
property rights and business enterprise have been hurt and
jeopardized because the Corps of Engineers has made an
internal judicial determination that he has violated his permit
and thus the Rivers and Harbors Act of 1899, 33 U.S.C.
§§304 and 407. This internal determination makes it
virtually impossible for Mr. Robinson to get a permit from
the Corps of Engineers to maintenance dredge his
commercial docking facility and adjacent channel, on which
he depends for his livelihood. Also, the internal decision of
non-compliance with permit 11706 stays with the property in
question, so should Mr. Robinson ever decide to sell, the
stigma of non-compliance stays attached to the property for
any subsequent purpose. His property value thus diminished
and a judicial determination that no violation has taken place
is the only way that Mr. Robinson can clear up the matter.

19a

Mr. Robinson contends that the failure of the Corps
to either bring a civil action against him or give him an
internal clearance leaves him with no option but to seek a
judicial determination under the Declaratory Judgment Act
that he has not violated permit no. 11706.

ne ee ee ee ee a

The Defendant The United States of America contends
that Mr. Robinson violated his permit.

The Defendant The United States of America further
contends that it has no duty to resolve issue in any other

form as to whether or not Mr. Robinson has violated permit
no. 11706.

NAEP atl Be CED n'y AR Nag: Bile A a it Ny Sats Bet

nb Se a9 es

Admission of Fact

bos oa le

3 Roy B. Robinson was issued Corps of
Engineers permit no. 11706 effective March
9, 1977 allowing him to dredge approximately
55,000 cubic yards of material by hydraulic
dredge and dragline and construct at steel
sheet pile bulkhead at his commercial docking
facility on Dickinson Bayou in Galveston
County, Texas.

ae.

2. Mr. Robinson is the owner of the property the
subject of this lawsuit.

“ SO es i Le OS ie apn RR ewe oy

Contested Issues of Fact

l. Did Mr. Robinson violate the Corps of
Engineers permit no. 11706.

20a
Agreed Applicable Propositions of Law

This case is properly brought under the

Declaratory Judgment Act.

® None

Contested Issues of Law

Witnesses

The Plaintiff will call the following witnesses:

i

Roy B. Robinson, Plaintiff, who will testify
concerning the facts of permit no. 11706.

Mr. Eddie Anderson, who will testify
concerning the meetings with the Corps of
Engineers and the facts surrounding the
issuance of permit no. 11706.

Mr. John Wong, (adverse), by deposition, who
will testify as to the activities of the Corps of
Engineers.

Mr. Henry King, (adverse), who will testify as
to why the Corps of Engineers has taken no
legal action against Plaintiff Roy B. Robinson
in the past seven years.

Mr. Earl Mills, former Corps of Engineers
employee who will testify of the events prior
to the issuing of the permit and the initial
stages of the investigation.

DEY MRL tae SN

2la

In addition, the Plaintiff reserves the right to call any
or all of the witnesses listed by the Defendant.

The Defendant plans to call the following witnesses:

l.

Mr. Fred L. Anthamatten, U.S. Army Corps
of Engineers, Galveston, Texas 77553.

Mr. Donald Nanninga, U.S. Army Corps of
Engineers Galveston, Texas 77553. Mr.
Nanninga performed the initial field
investigation of the activity.

Marcos De La Rosa, U.S. Army Corps of
Engineers, Galveston, Texas. Mr. De La
Rosa is the Chief, General Regulatory Branch,
Galveston District, Corps of Engineers.

Fred Miller, U.S. Corps of Engineers,
Galveston, Texas, 77553.

Earl Mills, former Corps of Engineers
employee.

In addition, the Defendant reserves the right to call
any or all of the witnesses listed by the Plaintiff.

Settlement

All settlement possibilities have been exhausted and
this case will have to be tried.

Length of Trial

It is estimated by the parties that this case will take
approximately one and one-half to two days to try.

22a

We hereby respectfully request the entry of this
Order.

Respectfully submitted,

__/s/ Richard Parker
Richard Parker

1550 Castle Court

Houston, Texas 77006

(713) 521-0247

ATTORNEY FOR PLAINTIFF

/s/ Robert Darden
Robert Darden
Assistant United States Attorney
515 Rusk Avenue, Suite 1200
Houston, Texas 77002
(713)229-2600
ATTORNEY FOR DEFENDANT

This Joint Pre-trial Order is hereby approved and
entered this__ eleventh _ day of February _, 1986.

/s/ H. Gibson
UNITED STATES DISTRICT JUDGE

TF A OP OO as EP BOTS A: 5 a he Dit 0 PRE RE PE et ORD FO ha od

23a

US COURT OF APPEALS
FILED
MAY - 4 1993
RICHARD E. WINDHORST, JR.
CLERK
RECEIVED MAY 10 1993

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 92-7360

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY B. ROBINSON,
Defendant-Appellant.

Appeal from the United States District Court of the
Southern District of Texas

ON PETITION FOR REHEARING
( May 4, 1993 )

Before REYNALDO G. GARZA, WILLIAMS and JONES,
Circuit Judges.

PER CURIAM:
IT IS ORDERED that the petition for rehearing filed
in above entitled and numbered cause be and the same is

hereby DENIED. 5/3/93

ENTERED FOR THE COURT:

24a
/s/_ Edith H. Jones

United States Circuit Judge

CLERK’S NOTE:

SEE FRAP AND LOCAL
RULES 41 FOR STAY OF THE
MANDATE.

25a

This case involves 28 U.S.C. §§2201 and 2202, 33
U.S.C. §§ 403, 407, 1311(a), 1319(b), 1344(s)(3),
1344(s)(5) and 33 CFR 323.2. It also involves Rules 12(b),
13(a), 15(b) and 16(e) of the Federal Rules of Civil
Procedure. These authorities appear verbatim in the
appendix, beginning at App. 25a.

28 U.S.C. §2201. Creation of Remedy

(a) In case of actual controversy within its
jurisdiction, except with respect to Federal taxes other than
actions brought under section 7428 of the Internal Revenue
Code of 1986, a proceeding under section 505 or 1146 of
title 11, or in any civil action involving an antidumping or
countervailing duty proceeding regarding a class or kind of
Canadian merchandise, as determined b the administering
authority, any court of the United States, upon the filing of
an appropriate pleading, may declare the rights and other
legal relations of any interested party seeking such
declaration whether or not further relief is or could be
sought. Any such declaration shall have the force and effect
of a final judgment or decree and shall be reviewable as
such.

28 U.S.C. § 2202. Further Relief

Further necessary or proper relief based on a
declaratory judgment or decree may be granted, after
reasonable notice and hearing, against any adverse party
whose rights have been determined by such judgment.

33 U.S.C. § 403. Obstruction of navigable waters
generally; wharves; piers, etc.

26a

The creation of any obstruction not affirmatively
authorized by Congress to the navigable capacity of any of
the waters of the United States is prohibited; and it shall not
be lawful to build or commence the building of any wharf,
pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or
other structures in any prot, roadstead, haven, harbor, canal,
navigable river, or other water of the United States, outside
established harbor lines, or where no harbor lines have been
established, except on plans recommended by the Chief of
Engineers and authorized by the Secretary of the Army; and
it shall not be lawful to excavate or fill, or in any manner to
alter or modify the course, location, condition, or capacity
of, any port, roadstead, haven, harbor, canal, lake, harbor of
refuge, or inclosure within the limits of any breakwater, or
of the channel of any navigable water of the United States,
unless the work has been recommended by the Chief of
Engineers and authorized by the Secretary of the Army prior
to beginning the same.

33 U.S.C. § 407. Deposit of refuse in navigable water
generally

It shall not be lawful the throw, discharge, or deposit,
or cause, suffer or procure to be thrown, discharge, or
deposited either from or out of any ship, barge, or other
floating craft of any kind, or from the shore, wharf,
manufacturing establishment, or mill of any kind, any refuse
matter of any kind or description whatever other than flowing
from streets and sewers and passing therefrom in a liquid
state, into any navigable water of the United States, or into
any tributary of any navigable water from which the same
shall float or be washed into such navigable water; and it
shall not be lawful to deposit, or cause, suffer, or procure to
be deposited material of any kind in any place on the bank of
any navigable water, or on the bank of any tributary of any
navigable water, where the same shall be liable to be washed

{
)

27a

into such navigable water, either by ordinary or high tides,
or by storms or floods, or otherwise, whereby navigation
shall or may be impeded or obstructed: Provided, That
nothing herein contained shall extend to, apply to, or prohibit
the operations in connection with the improvement of
navigable waters, or construction of public works, considered
necessary and proper by the United States officers
supervising such improvement or public work: And provided
further, That the Secretary of the Army, whenever in the
judgment of the Chief of Engineers anchorage and navigation
will not be injured thereby, may permit the deposit of any
material above mentioned in navigable waters, within limits
to be defined and under conditions to be prescribed by him,
provided application is made to him prior to depositing such
material; and whenever any permit is so granted the
conditions thereof shall be strictly complied with, and any
violation thereof shall be unlawful.

33 U.S.C. § 1311(a).

(a) Illegality of pollutant discharges except in
compliance with law

Except as in compliance with this section and sections
1312, 1316, 1317, 1328, 1342, and 1344 of this title, the
discharge of any pollutant by any person shall be unlawful.

33 U.S.C. § 1319(b)
(b) Civil actions

The Administrator is authorized to commence a civil
action for appropriate relief, including a permanent or
temporary injunction, for any violation for which he is
authorized to issue a compliance order under subsection (a)
of this section. Any action under this subsection may be

28a

brought in the district court of the United States for the
district in which the defendant is located or resides or is
doing business, and such court shall have jurisdiction to
restrain such violation and to require compliance. Notice of
the commencement of such action shall be given immediately
to the appropriate State.

33 U.S.C. § 1344(s)(3)
(s) Violation of permits

(3) The Secretary is authorized to commence a civil
action for appropriate relief, including a permanent or
temporary injunction for any violation for which he is
authorized to issue a compliance order under paragraph (1)
of this subsection. Any action under this paragraph may be
brought in the district court of the United States for the
district in which the defendant is located or resides or is
doing business, and such court shall have jurisdiction to
restrain such violation and to require compliance. Notice of
the commencement of such acton' shall be given
immediately to the appropriate State.

33 U.S.C. § 1344(s)(5)
(s) Violation of permits

(5) | Any person who violates any condition or
limitation in a permit issued by the Secretary under this
section, and any person who violates any order issued by the
Secretary under paragraph (1) of this subsection, shall be
subject to a civil penalty not to exceed $10,000 per day of
such violation.

1. So in original. Probably should be “action”.

Larrea

29a
"33 C.F.R. 323.2 Code of Federal Regulations

(b) The term ’navigable waters of the United States’
means those waters of the United States that are subject to
the ebb and flow of the tide shoreward to the mean high
water mark and/or are presently used, or have been used in
the past, or may be susceptible to use to transport interstate
or foreign commerce. (See 33 CFR Part 329 for a more
complete definition of this term.)

(c) The term ‘wetlands’ means those areas that are
inundated 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 adapted for life in saturated soil conditions.
Wetlands generally include swamps, marshes, bogs and
similar areas."

Rule 12(b), Federal Rules of Civil Procedure

(b) How Presented. Every defense, in law or fact,
to a claim for relief in any pleading, whether a claim,
counterclaim, cross-claim, or third-party claim, shall be
asserted in the responsive pleading thereto if one is required,
except that the following defenses may at the option of the
pleader be made by motion: (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3)
improper venus, (4) insufficiency of process, (5)
insufficiency of service of process, (6) failure to state a claim
upon which relief can be granted, (7) failure to join a party
under Rule 19. A motion making any of these defenses shall
be made before pleading if a further pleading is permitted.
No defense or objection is waived by being joined with one
or more other defenses or objections in a responsive pleading
or motion. If a pleading sets forth a claim for relief to
which the adverse party is not required to serve a responsive

30a

pleading, the adverse party may assert at the trial any
defenses in law or fact to that claim for relief. If, on a
motion asserting the defense numbered (6) to dismiss for
failure of the pleading to state a claim upon which relief can
be granted, matters outside the pleading are presented to and
not excluded by the court, the motion shall be treated as one
for summary judgment and disposed of as provided in Rule
56, and all parties shall be given reasonable opportunity to
present all material made pertinent to such a motion by Rule
56.

Rule 13(a), Federal Rules of Civil Procedure

Compulsory counterclaims. A pleading shall state as
a counterclaim any claim which at the time of serving the
pleading the pleader has against any opposing party, if it
arises Out of the transaction or occurrence that is the subject
matter of the opposing party’s claim and does not require for
its adjudication the presence of third parties of whom the
court cannot acquire jurisdiction. But the pleader need not
state the claim if (1) at the time the action was commenced
the claim was the subject of another pending action, or (2)
the opposing party brought suit upon the claim by attachment
or other process by which the court did not acquire
jurisdiction to render a personal judgment on that claim, and
the pleader is not stating any counterclaim under this Rule
13.

Rule 15 (b), Federal Rules of Civil Procedures
(b) Amendments to Conform to the Evidence.
When issues not raised by the pleadings are tried by
express or implied consent of the parties, they shall be

treated in all respects as if they had been raised in the
pleadings. Such amendment of the pleadings as may be

—————

3la

necessary to cause them to conform to the evidence and to
raise these issues may be made upon motion of any party at
any time, even after judgment; but failure so to amend does
not affect the result of the trial of these issues.

Rule 16 (e), Federal Rule of Civil Procedure

(e) Pretrial Orders. After any conference held
pursuant to this rule, an order shall be entered reciting the
action taken. This order shall control the subsequent course
of the action unless modified by a subsequent order. The
order following a final pretrial conference shall be modified
only to prevent manifest injustice.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1233%3A1. Public record. Not legal advice.