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Buttrey v. United States

ELR Citation: 13 ELR 20085
Nos. No. 81-3234, 690 F.2d 1170/18 ERC 1241/(5th Cir., 11/08/1982) Aff'd

The Fifth Circuit affirms the district court ruling, 11 ELR 20932, that neither §404 of the Federal Water Pollution Control Act (FWPCA) nor the Due Process Clause requires the Corps of Engineers to provide appellant a trial-type hearing before denying a dredge and fill permit. The court notes that the adjudication provisions of the Administrative Procedure Act apply only if required by statute. However, it rules that §404 does not require trial-type hearing. Although both §402, which has been held to require trial-type hearings, and §404 provide for an "opportunity for public hearings," the court notes that since the statute is unclear in both cases it must look to the legislative history. Both the legislative history and subsequent history of the FWPCA indicate that Congress intended to adopt under §404 the simplified permit procedures already used by the Corps. Furthermore, the public hearings provision was adopted in §404 to protect the public, not permit applicants.

Applying the Supreme Court's three-part analysis of what process is due, the court rules that a trial-type hearing is not required in this case under the Due Process Clause. First, while appellant has a strong private interest, it is not overwhelming. Second, a routine imposition of trial-type hearings would pose an unbearable burden on the Corps. Third, on balance the imposition of a trial-type hearing would not reduce the risk of error significantly. Since appellant improperly used factual arguments to challenge Corps policy, cross-examination of witnesses would not resolve the issues raised by appellant.The Corps' procedures provided appellant with sufficient procedural due process. Looking only to the administrative record, the court also rules that neither the Corps' denial of the permit nor its wetlands determination was arbitrary or capricious.

Counsel for Appellant
Charles K. Reasonover, Pamela Mehle
Deutsch, Kerrigan & Stiles
4700 One Shell Sq., New Orleans LA 70139
(504) 581-5141

Counsel for Appellees
Kay L. Richman, Anne S. Almy
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2956

Before CLARK, Chief Judge, POLITZ and RANDALL, Circuit Judges.