United States v. Boccanfuso
Citation: 19 ELR 21388
No. No. 88-6256, 882 F.2d 666/30 ERC 1292/(2d Cir., 08/09/1989) Rev'd
The court holds that the United States government is not estopped from asserting claims against a private citizen who built a seawall in United States waters without reasonable reliance on an official's verbal representation of the Army Corps of Engineers jurisdiction under the Federal Water Pollution Control Act (FWPCA), and the Corps' failure timely to process a FWPCA § 404 permit did not amount to affirmative misconduct. The court first holds that defendant could not reasonably have relied on a Corps official's verbal statement that the Corps' FWPCA jurisdiction extends only to the mean high-water mark in light of numerous correct oral and written representations that the Corps' jurisdiction extends land-ward of the mean high-water line. The defendant's seawall was in a similar location to one previously rejected by the Corps, and defendant demonstrated knowledge of the Corps' jurisdiction under the FWPCA in extensive communications and dealings with the Corps. That the Corps granted permission to lay riprap worked no waiver of its jurisdiction and, instead, was consistent with its responsibility for the maintenance of currently serviceable structures without a § 404 permit.
The court next holds that the Corps' failure timely to process defendant's § 404 permit application did not amount to affirmative misconduct. The Corps cannot be estopped from enforcing the FWPCA on the ground that it failed to follow the deadlines established by its own regulations. Federal agencies do not lose jurisdiction by their failure to comply with statutory time limits unless the statute demonstrates congressional intent that this result occur. The timely processing of applications by the Corps is not congressionally mandated, and the Corps' violation of several of its own deadlines does not bar enforcement of the FWPCA. Further, equitable estoppel is granted only in very limited and unusual circumstances, and not when a less drastic remedy is available. Instead of building the seawall, defendant could have brought an action in district court under the Administrative Procedure Act (APA) for judicial review of the Corps' failure timely to process his § 404 permit application. Circumvention of the APA to raise the defense of estoppel is impermissible, and the court is reluctant to void agency action for failure to observe a procedural requirement when an important public right is at stake and a less drastic remedy is available.
A dissent would hold that the Corps' conduct was so seriously misleading and deficient that it was sufficient to constitute the affirmative misconduct necessary to estop the government.
Counsel for Appellant
Michael P. Healy
Land and Natural Resources Division
U.S. Department of Justice, P.O. Box 7611, Ben Franklin Station, Washington DC 20044
Counsel for Appellee
Richard A. Fuchs
Koskoff, Koskoff & Bieder
350 Fairfield Ave., Bridgeport CT 06604
Before Timbers and Meskill, JJ.