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United States v. Commodore Club, Inc.

Citation: 7 ELR 20035
No. No. 5-80037, 418 F. Supp. 311/(E.D. Mich., 04/27/1976)

The court holds not guilty a yacht club charged under § 403 of the Rivers and Harbors Act with illegally filling property which was flooded by abnormally high waters. The 66-acre parcel in question, adjacent to Lake St. Clair, had been separate from the lake until 1973, when peak flooding occurred and decimated the sand bar separating the parcel from the lake. The Corps of Engineers issued "draft" permits to construct residential units on part of the parcel, but never issued actual filling permits. Although the Corps incorrectly carried out its statutory consultation duties only after issuance of these permits, a "clean hands" equitable defense is not applicable to this criminal prosecution. The Government, however, failed to establish beyond a reasonable doubt that 55 acres of the parcel were below the ordinary high water mark. As to the remaining 11 acres lying below the high water mark, the Act has no requirement of specific criminal intent. In view of the Act's stringent criminal penalties, however, the Government must establish a general intent to violate the Act, which it did not accomplish with its equivocal evidence concerning the 11-acre fill. Finally, fast land below the high water mark does not become part of the navigable waters through avulsion, that is, temporary flooding; the Government, therefore, failed to prove beyond a reasonable doubt that the area was part of Lake St. Clair solely through erosion.

Counsel for Plaintiff
Harold Z. Gurewitz, Asst. U.S. Attorney
Federal Building
231 Lafayette Blvd.
Detroit MI 48226
(313) 226-7715

Counsel for Defendant
Raymond A. Ballard
Foster, Meadows & Ballard
3266 Penobscot Bldg.
Detroit MI 48226
(313) 961-3234