Buccaneer Point Estates, Inc. v. United States

No. 78-194-CIV-WMH (S.D. Fla. February 25, 1982)

The district court rules that the Corps of Engineers, after disclaiming jurisdiction, may subsequently require plaintiffs to obtain a Federal Water Pollution Control Act (FWPCA) § 404 permit prior to further placement of fill material on mangrove wetlands. In 1975 the Corps advised plaintiffs that their fill activity did not require a permit, but later informed them that its § 404 jurisdiction had been held to include dredge and fill projects. The court rejects plaintiffs' contentions that the Corps is estopped or otherwise barred from requiring them to obtain a § 404 permit by its earlier erroneous interpretation of the jurisdiction conferred by the FWPCA. In addition, the court notes that estoppel against the federal government is inapplicable in the instant action. The court also rejects plaintiffs' contention that defendant's actions amounted to a taking, ruling that there has been no taking since there has been as yet no permit denial.

Counsel for Plaintiffs
Arthur M. Simon
Goodwin, Ryskamp, Welcher, Carrier & Donoff
401 City Nat'l Bank Bldg., 25 W. Flagler St., Miami FL 33130
(305) 379-8353

Counsel for Defendant
Stanley Marcus, U.S. Attorney
155 S. Miami Ave., Miami FL 33130
(305) 35-4471

[12 ELR 20732]

Hoeveler, J.:

Final Judgment

THIS CAUSE having come before this Court upon a nonjury trial before the undersigned judge, and the Court having heard argument of counsel reviewed the record and being otherwise duly advised in the premises, it is

ORDERED AND ADJUDGED that final judgment be and it is hereby entered in favor of the defendant, UNITED STATES OF AMERICA, and against the plaintiffs, BUCCANEER POINT ESTATES, INC., a Florida corporation, and JAMES C. DOUGHERTY, STUART D. MARR and LOIS A. MARR, his wife. Plaintiffs shall take nothing by their action and the defendant shall go hence without day. Costs which are properly taxable shall be done by separate motion and order.

DONE AND ORDERED in Chambers at Miami, Florida this 25th day of February, 1982.

Memorandum Opinion

The Facts

This case involves the question of the Government's right (regulatory jurisdiction) to require Corps of Engineers approval to do certain work in a mangrove wetland area in Key Largo, Monroe County, Florida. The plaintiffs object, in view of the factual history involved, to the Federal Government requiring them to apply for a permit to discharge dredged or fill material in "wetlands" situated on their property. Plaintiffs assert several bases for exemption from permit requirements including estoppel, unconstitutionality, futility, vested rights and others. Plaintiffs main thrust, however, is the alleged inequity visited upon them by [12 ELR 20733] the change in Government position subsequent to advice that a Corps permit was not necessary.

The problem began in March of 1973 with a Corps of Engineers letter to a contractor and one of the plaintiffs advising of Corps permit requirements for work done on the property below the mean high tide line. Ultimately, the north part of the property became the area in contention. In May of 1974, the plaintiff provided the Corps with a survey of the north area and was, thereafter, advised a permit would be necessary. (See Defendant's Ex. #5). However, the Corps did agree to a tide study and this was done, the study ending in December 1975. Because of the study results, the Corps position was changed and on March 25, 1975, plaintiffs were advised by letter that no permit was necessary. Plaintiffs were, however, further advised, in the same letter, of the Environmental Protection Agency's (E.P.A.) interest in the placement of fill in wetlands above the mean high water line and the permit requirements of Section 404 of the (Federal Water Pollution Control Act) amendments of 1972 Pub. Law 92-500. Contact with the E.P.A. in Atlanta was suggested. O. such contact was ever made by plaintiff.

On March 27, 1975, Natural Resources Defense Council v. Callaway, 392 F. Supp. 685 [5 ELR 20285] (USDC, Dist. of Col. 1975) was decided. The effect of the decision was to expand the jurisdiction of the Corps of Engineers to dredge and fill projects under the F.W.P.C.A. Indeed, the Court held that certain self-imposed limitations on its jurisdiction promulgated by the Corps of Engineers had been unwarranted and improper. The plaintiffs were advised by Corps letter of May 19, 1975, that its jurisdiction would soon be expanding to encompass dredge and fill projects. Thereafter, new and relevant Corps regulations were completed.

By letter of September 13, 1975, Mr. Marr was notified that a permit would be required as a condition to further placement of fill on the mangrove wetlands on the property in question. Plaintiffs elected to file this action rather than apply for a permit.

The Estoppel Defense

At trial (and subsequently) plaintiffs argued that they obediently waited over a protracted period while the Corps investigated its jurisdiction over the property in question. Plaintiffs submitted drawings in support of their position and otherwise cooperated in the Government's pursuit of the true mean high water line. The investigation resulted in the Corps' March 25, 1975 letter disclaiming jurisdiction.

In an appealing but ultimately infirm argument, plaintiffs contend that they, in fact, had a legal right to proceed with filling at least until March 27, 1975, and if they had done so, they would not now be subject to enforcement or sanctions of any type. Because they obeyed the Corps' early directives (which were then erroneous, they argue) they now are in a situation where a permit is required before fill can be placed.

To be impaled on the spear of obedience, the plaintiffs argue, is essentially unfair, and calls for a judgment in the nature of an estoppel against the Government.

As attractive as I initiall found this illogical syllogism, it does not stand either careful examination or the impact of case law. Indeed, the Government did have the right to require a permit for the filling (Natural Resources Defense Council v. Callaway, supra); Federal Water Pollution Control Act Amendment 1972; Pub. Law 92-500. Passing for the moment plaintiffs failure to seek E.P.A. approval, (a subject which the plaintiffs have not addressed) it is true that if the Corps had made its "no jurisdiction" determination well before the 25th of March, the work probably would have been completed and without recourse from the Government. In fact, the work should not have been done without permit and plaintiffs real complaint is that they were denied an advantage which we now know they should not have had in the first place.

Additionally, estoppel against the Government would not be appropriate; Bankers Life and Casualty Co. v. Village of North Palm Beach, Fla., 469 F.2d 994 [2 ELR 20528] (5th Cir. 1972); even where a detriment has been demonstrated; Hicks v. Harris, 606 F.2d 65 (5th Cir. 1979). In United States v. Florida, 482 F.2d 205 (5th Cir. 1973), the Court stated:

[10] Appellants urge that the United States, as to this property, is acting in a proprietary function rather than a governmental one. This Court finds that the ceding of land by the United States Government to the State of Florida for public park purposes is a governmental function, the action itself being for the benefit of the public.

[11-13] Whether the defense of estoppel may be asserted against the United States in actions instituted by it depends upon whether such actions arise out of transactions entered into in its proprietary capacity or contract relationships, or whether the actions arise out of the exercise of its powers of government. The United States is not subject to an estoppel which impedes the exercise of its powers of government and is not estopped to deny the validity of a transaction or agreement which the law does not sanction. Sanitary Dist. v. United States, 266 U.S. 405, 45 S. Ct. 1976, 69 L.Ed. 352 (1925); Utah Power & L. Co. v. United States, 243 U.S. 389, 37 S. Ct. 387, 61 L.Ed 791 (1916).

As suggested above, I question whether the facts would, in any event, call for an estoppel. Plaintiffs offered evidence of reliance and financial change of position but no evidence to demonstrate any contact with the E.P.A. after March 25, 1975, and before May 19, or September 13, 1975.

Plaintiffs have not given the appropriate governmental agencies an opportunity to either grant or deny the permission plaintiffs seek. Their argument that such an effort would be futile is not supported by adeauate evidence. The remedies available to the plaintiffs have neither been employed nor exhausted, Hoffburg v. Alexander, 615 F.2d 633 (5th Cir. 1980).

Other Grounds for Relief

I find further that the other grounds asserted by the plaintiffs must be rejected. The arguments of retroactivity and/or becoming the recipient of ex post facto treatment bear resemblance to plaintiffs' main thrust of estoppel. The Government's jurisdiction was present during all of the pertinent times. Natural Resources Defense Council v. Callaway, supra; U.S. v. Holland, 373 F. Supp. 665 [4 ELR 20710] (M.D. FL, 1974). This jurisdiction and the right to regulate certain activities on property acquired by plaintiffs do not impermissibly deprive plaintiffs of a "vested" right. Neither is the legislation in question (nor the ensuing regulations) unconstitutional. United States v. Ashland Oil, etc., 504 F.2d 1317 [4 ELR 20784] (6th Cir. 1974); U.S. v. Holland, supra; U.S.A. v. Jos. G. Moretti, Inc., 478 F.2d 418 [3 ELR 20414] (5th Cir. 1973); U.S.A. v. Jos. G. Moretti, Inc., 526 F.2d 1306 [6 ELR 20221] (5th Cir. 1976). There has been no "taking" of plaintiffs land by the Government. To this point, the Government asserts the need for a permit to fill on the property in question. As no permit has been requested, none has been denied. As there has been no denial, there can be no "taking." The preceding discussions suggest the fate of the "taking" argument in any event, but the point here is that procedurally, it must fail.

Conclusion

The chronology of governmental activity after its representatives became aware of plaintiffs' intentions, leaves something to be desired. Plaintiffs' compliance with the initial directions of the Corps of Engineers, which directions were pregnantly correct though factually incorrect at the time, caused plaintiffs the loss of an advantage which they might have otherwise enjoyed. While one can understand the reaction to these events, such loss, if indeed loss is an appropriate description is not one for which the plaintiffs have a cause of action. Even prior to the change in Corps of Engineers regulations, plaintiffs never sought E.P.A. approval to fill the wetlands under consideration. Now, plaintiffs must first seek a Corps of Engineers permit to proceed with the proposed work or take such other action as is proper in the event of a denial.

For the reasons stated, the plaintiffs cause is dismissed; the relief sought is denied, the plaintiffs shall take nothing by this action and judgment shall be entered for the defendant.

DONE AND ORDERED in Chambers at Miami, Florida this 25th day of February, 1982.