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United States v. Diamond

Citation: 5 ELR 20334
No. No. 74-2273, 512 F.2d 157/8 ERC 1187/(5th Cir., 04/24/1975) Aff'd

The Fifth Circuit Court of Appeals affirms a lower court's issuance of a permanent injunction against the filling of certain tidal marshlands. Defendant has made no clear showing that the district court erred in finding the creek which adjoins the marshland navigable in fact, or in determining that the marshlands were below the mean high tide line and thus subject to the Corps of Engineers' jurisdiction under the Rivers and Harbors Act of 1899. The fact that the Secretary of the Army did not request the government to bring this suit does not invalidate the action since the United States Attorney's duty to prevent violations of the law justifies his filing suit no matter who brings the violation to his attention. The defendant is also mistaken in asserting that his dock permit, granted in 1965, established a harbor line shoreward of which filling is permitted if begun before 1970, since harbor lines can be designated only through formal procedures, and none have taken place here. For the lower court's opinion, see 4 ELR 20510.

Counsel for Plaintiffs
Lamar C. Walter Asst. U.S. Attorney
P.O. Box 2017
Augusta, Ga. 30903

John J. Zimmerman
Department of Justice
Washington, D.C. 20530

Counsel for Defendant
Herman Diamond, pro se
31610 Mecceo Drive
Savannah, Ga. 31404