Jump to Navigation
Jump to Content

Buttrey v. United States

ELR Citation: 13 ELR 20124
Nos. No. 81-3649, 690 F.2d 1186/18 ERC 1368/(5th Cir., 11/08/1982) Interlocutory appeal

The court upholds the constitutionality of Congress' delegation to the Army Corps of Engineers of authority to issue dredge and fill permits under §404 of the Federal Water Pollution Control Act. The court rejects appellants' argument that §404 unconstitutionally permits the Corps, a part of the military, to assert authority over civilians in violation of Article I, §8 of the Constitution. It rules that the authority of the Corps to regulate under §404 is not found in the "war power" provisions, but in the Commerce Clause. In addition, the Corps' authority does not infringe any constitutional rights. It does not encroach upon the jurisdiction of Article III courts, since violators of §404 are not tried in military courts, nor does the Corps' surveillance of appellants' activities infringe any First Amendment rights.Furthermore, the Corps is considered the civil arm of the military, is supervised by a civilian, and judicial review of Corps activities is available in civil courts.

[Related decisions are reported at 11 ELR 20932 and 13 ELR 20085 — Ed.]

Counsel are listed at 13 ELR 20085.

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