Jump to Navigation
Jump to Content

Bayou des Familles Dev. Corp. v. Corps of Eng'rs

ELR Citation: 13 ELR 20055
Nos. No. 79-4324, 541 F. Supp. 1025/18 ERC 1696/(E.D. La., 04/20/1982)

The court rules that the Corps of Engineers was not arbitrary and capricious in denying an after-the-fact permit under §404 of the Federal Water Pollution Control Act (FWPCA) and §10 of the Rivers and Harbors Act (RHA) for the construction of a levee and pumping station in a cypress-tupelo gum swamp in Louisiana. The court also dismiss plaintiff's action to enjoin the Department of the Interior from taking actions under the Jean Lafitte National Historical Park Act (JLNHPA) which may affect plaintiff's property.

The court rules that plaintiff violated §10 of the RHA and §404 of the FWPCA by failing to obtain a permit prior to construction. Applying the "ebb and flow" of the tide test, the court determines that two tidal waterways and marshlands on plaintiff's property are navigable waters and are therefore subject to the Corps' jurisdiction under §10. In addition, plaintiff's property is a wetland within the definition contained in the Corps' regulations and the discharge of dredged or fill material constituted discharges of pollution into navigable waters within the meaning of the FWPCA. Therefore, plaintiff's project was subject to the Corps' jurisdiction under §404. The Corps' decision to deny the permit on ecological grounds was not arbitrary and capricious. The administrative record clearly indicates that the Corps reasonably considered the flood control aspects of the project as well as the effects on wetlands, water quality, and fish and wildlife habitat.

The court also rejects plaintiff's constitutional challenges. Sections 10 and 404 are valid under the Commerce Clause. The §404 regulations are not unconstitutionally vague because they specify the applicable procedures, the criteria for public interest review, and the factors the Corps must consider. The court finds no proof of invidious arbitrary discrimination to support plaintiff's charge of selective prosecution. Finally, the court rules that the long delay between submission of plaintiff's permit application and the Corps' denial was not a denial of due process. Nor does the Administrative Procedure Act authorize the court to enjoin the permit denial since it only allows courts to compel agency action unreasonably delayed.

The court also upholds the constitutionality of the JLNHPA's eminent domain provisions and finds that the Interior Department's failure to develop consultation guidelines within six months as required by the Act and its announcement of its intention to condemn plaintiff's property contingent on the availability of funds are not reviewable by the court. The court dismisses as nonjusticiable under the Flood Control Act plaintiff's challenge to the Corps' proposed hurricane levee project. It also dismisses as inappropriate the claim for injunctive relief for an uncompensated taking, pointing out that the exclusive remedy for such claims rests with the Court of Claims under the Tucker Act for money damages.

Counsel for Plaintiff
Carl J. Schumacher Jr., Moise S. Steeg Jr., Robert M. Steeg
Steeg & O'Connor
Suite 1440, Oil & Gas Bldg., New Orleans LA 70112
(504) 581-9362

Counsel for Defendants
Elizabeth Stein
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2750

Hattie Broussard, William F. Baity, Ass't U.S. Attorneys
500 Camp St., New Orleans LA 70131
(504) 589-3518