Signal Properties v. Alexander

No. CV-80-620-MML (C.D. Cal. September 16, 1980)

The district court stays further proceedings pending exhaustion of administrative remedies in a suit seeking a declaratory judgment that plaintiffs' fill activities are not within the jurisdiction of the Army Corps of Engineers. Plaintiffs, who failed to obtain a permit under § 404 of the Federal Water Pollution Control Act prior to discharging fill material, contended that the filled land was not a wetland. The court finds that since the Corps has not had an opportunity to determine if it has jurisdiction over the filled land, judicial review is inappropriate. Furthermore, there is no evidence of irreparable harm, the Corps is not clearly without jurisdiction, and the agency's expertise will clearly assist the court in resolving the dispute.

Counsel for Plaintiffs
Frederick A. Fudacz
Nossaman, Krueger & Marsh
445 S. Figueroa Rd., Los Angeles CA 90071
(213) 628-5221

Counsel for Defendants
Howard Gest, Ass't U.S. Attorney
312 N. Spring St., Rm. 1269, Los Angeles CA 90012
(213) 688-2434

[12 ELR 20756]

Lucas, J.:

Order Staying Further Proceedings

After careful consideration of the Defendants' Motion to Dismiss or Stay, filed on July 1, 1980, and the opposition thereto, the Court hereby stays further proceedings in this action pending a final administrative determination in this matter by the Army Corps of Engineers. This Order is based upon the following considerations.

With certain exceptions, the Federal Water Pollution Control Act provides that no person may fill United States' waters without a proper permit issued by the Army Corps of Engineers. 33 U.S.C. § 1344. The regulations concerning this permit system are contained in 33 C.F.R. §§ 320, et seq. Part of these regulations provides that United States' waters include adjacent wetlands. 33 C.F.R. § 323.2(a). An additional section of these regulations provides that a person who has already discharged fill material into waters of the United States can apply for a retroactive permit from the Army Corps of Engineers. 3 C.F.R. § 326.5

Plaintiffs in this action have discharged fill material onto certain land located in Orange County, California. Plaintiffs neither sought a permit prior to this activity, nor applied for a retroactive permit. Instead, plaintiff filed this action on February 15, 1980, seeking a declaratory judgment that their activity is exempt from the federal regulations listed above, because the land filled was not wetlands.

Defendants responded that a final administrative agency determination has not been made regarding plaintiffs' activity. Defendants have requested, therefore, that this action be dismissed or, in the alternative, stayed pending a full and final administrative determination of the issues presented in this matter.

It appears to the Court that the defendants' concerns are well-founded. Despite some evidence of administrative action in this matter, there has never been a full administrative report on the issues presented in this case. Certainly there has been nothing remotely resembling the findings of fact and evaluation required of the District Engineer by 33 C.F.R. § 325.2 for all permit applications.

A critical question in this case is whether the Army Corps of Engineers has jurisdiction over the land in question, and the evidence in the record at this time does not suggest a clear answer. Under Marshall v. Burlington Northern, Inc., 595 F.2d 511 (9th Cir. 1979), before a federal court considers the question of an agency jurisdiction, there should be an exhaustion of administrative remedies. The agency must be given an opportunity to determine whether it has jurisdiction. Judicial intervention is appropriate only when (1) there is evidence that exhaustion will result in irreparable harm; (2) the agency's jurisdiction is plainly lacking and (3) the agency's special expertise will be of no help in deciding the jurisdiction question. In this case, there is no evidence of irreparable harm; it is not clear whether the agency's jurisdiction is plainly lacking; and the agency's expertise will clearly aid this Court in resolving the dispute between the parties.

The Court is of the opinion, therefore, that plaintiffs have not exhausted their administrative remedies. Under 33 C.F.R. § 326 a person who has discharged fill material in waters of the United States can apply for a retroactive permit from the Army Corps of Engineers. If plaintiffs make such an application, they can argue the same jurisdictional question presented in this case. Under 33 C.F.R. §§ 325.1(d) and 326.5, the District Engineer can consider whatever additional information he deems appropriate; and the evidence submitted in this motion makes it clear that he will consider whatever jurisdictional evidence the plaintiffs wish to submit.

Accordingly, the Court orders that all further proceedings in this matter be stayed, until such time as the District Engineer issues findings of fact and evaluation pursuant to 33 C.F.R. § 325. This evaluation should fully address the jurisdictional questions presented by plaintiffs. Moreover, the evaluationshould address whether 33 C.F.R. §§ 323.3 and 323.4-1 permit the Army Corps to assert jurisdiction over the entire acreage in this case, or just the acres of land filled after July 25, 1975. Counsel shall file a joint status report with the Court in the progress of this matter four (4) months from the date of this Order and every four (4) months thereafter.

IT IS SO ORDERED.

IT IS FURTHER ORDERED that the Clerk shall serve, by United States mail, copies of this Order on counsel for plaintiffs and counsel for defendants in this matter.

Dated: September 16, 1980.