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United States v. Sexton Cove Estates, Inc.

Citation: 6 ELR 20216
No. No. 75-1638, 526 F.2d 1293/8 ERC 1657/(5th Cir., 02/17/1976) Rev'd in part & remanded

A district court judgment requiring restoration of ten canals dug without Corps of Engineers permits is partially reversed and remanded. Five of the canals, although located above the mean high tide line, are subject to the Corps' jurisdiction under the Rivers and Harbors Act of 1899 because they are connected to Blackwater Sound, a navigable body of water, and clearly alter its course by changing its shoreline. The other five canals remain plugged, however, and while they exhibit tidal fluctuations, do not affect the course, condition, location or capacity of Blackwater Sound because they are not connected to it. These latter canals are thus not subject to the Corps' jurisdiction, and the district court's partial restoration order with respect to them is therefore without foundation. The lower court also erred in holding the former president of the defendant development corporation personally liable for the costs of restoring those five canals which were illegally constructed. The Rivers and Harbors Act does not provide for such personal liability, and there is not sufficient proof to warrant piercing the corporate veil in this instance. The district court correctly rejected defendants' arguments that individual lot owners within the development are indispensable parties to this lawsuit, and that they were "affirmatively misled" by Corps' regulations and administrative practices which they interpreted as exempting them from the permit requirements. The issue of restoring the five illegal canals is remanded for a hearing to give defendants the opportunity to adduce evidence and present their contentions regarding environmental rehabilitation.

Counsel for Plaintiff-Appellee
Lawrence B. Craig, III, Asst. U.S. Attorney
300 Ainsley Bldg.
Miami FL 33132
(305) 350-4471

Eva R. Datz
Department of Justice
Washington DC 20530
(202) 739-2827

Counsel for Defendant-Appellant
Michael D. Sikes
Corlett, Merritt, Killiam & Mascaro
116 W. Flagler St.
Miami FL 33130
(305) 377-8931

Dyer, J. for himself, Bell & Ainsworth, JJ.