Cumberland Farms of Connecticut, Inc. v. Marsh

No. 83-1653-Mc (D. Mass. May 25, 1984)

The court holds that the Corps of Engineers' initial determination that plaintiff's activities fell within the Corps' regulatory jurisdiction under § 404 of the Federal Water Pollution Control Act is not reviewable until plaintiff exhausts its administrative remedies. In response to a letter from the Corps noting probable jurisdiction and apparent violation of § 404 by plaintiff, plaintiff sought a judicial determination that its activities fall within the agriculture and silviculture exemption of § 404, claiming that it should not have to go through the administrative application process. But the court rules that, in the interest of avoiding unnecessary judicial intervention, it must allow the Corps to determine whether it has jurisdiction, and the extent of such jurisdiction.

Counsel for Plaintiff
Allan van Gestel
Goodwin, Procter & Hoar
28 State St., Boston MA 02109
(617) 528-5700

Counsel for Defendants
Mark Fitzsimmons
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2285

[14 ELR 20591]

McNaught, J.:

Memorandum and Order Allowing Defendants' Motion to Dismiss

This action came on to be heard on the defendants' motion to dismiss based generally upon contentions that (1) there is no final agency action for this Court to review, and (2) a failure on the part of the plaintiff to exhaust administrative remedies.

The action was filed June 10, 1983 for declaratory relief against the United States Army Corps of Engineers and its officers. A letter was written by the Deputy Division Engineer of the New England Division of the Corps of Engineers. In that letter Cumberland was advised that its discharge of dredged and filled material into waters of the United States in Middleboro, Massachusetts, was subject to the requirements of the Clean Water Act. The Act prohibits the discharge of a pollutant into navigable waters defined as "waters of the United States, including the territorial seas." Such waters include tributaries to traditional navigable waters and adjacent wetlands. Under § 404 of the Act, a permit may be obtained authorizing discharge of dredged and filled material. Failure to obtain a permit is punishable by a civil penalty of up to $10,000 per day and a criminal fine of up to $25,000 per day for discharges which are not in compliance. The Act allows for limited exemptions.

Cumberland, the lessee of land in the towns of Middleboro and Halifax, has been engaged in activities including the grazing [14 ELR 20592] of cattle, draining of timberland to harvest standing timber and the utilization of harvested timberland as additional tillable fields. A portion of their activities apparently affect two brooks named Bartlett and Raven, which the government considers to be tributaries of the Taunton River. On April 15, 1983, therefore, the Deputy Division Engineer advised Cumberland that its activities appeared to be in violation of federal law.

Cumberland argues that the Corps has created an actual controversy by effectively asserting its jurisdiction and seeking to regulate that work. It insists that the Corps created the actual justiciable controversy by its determination of jurisdictional authority; that the Corps has proceeded to act upon its determination by attempting to regulate Cumberland's activities on the property. Cumberland acknowledges that no final agency action has been taken with respect to the issuance of a permit under § 404 of the Clean Water Act, but says that its activities fall within the agricultural and silvicultural exemption; that the Corps, therefore, has no power to regulate and should not require Cumberland to apply for the permit or to go through the administrative process.

In a nutshell, Cumberland seeks to pursuade the Court that the Corps has made a final determination with respect to its jurisdiction, and that this determination presents an issue which ought to be reviewed.

The motion to dismiss must be allowed. The defendants contend, and rightly so, that an initial determination of jurisdiction has to be made by an agency before a permit process may be initiated. That determination should not trigger judicial review. This is not to say that the jurisdictional issue may not be presented to a court at some later time. But ordinarily the agency must first consider challenges to its jurisdiction, and in the ordinary case unnecessary judicial intervention should be avoided.

By letter, the defendants brought to the attention of the Court, subsequent to the filing of its formal brief, the decision by the Court of Appeals for the 5th Circuit, Avoyelles Sportmen's League, Inc. v. Marsh, 715 F.2d 897 [13 ELR 20942] (5th Cir. 1983). The content of that decision (see pages 919 and 920) spells out clearly the reasons behind the policies providing the foundation for the doctrine of primary jurisdiction and that of exhaustion of administrative remedies. The Court must allow the Corps to make the initial determination concerning its jurisdiction, and the extent of it and, in this case, the Court must not interrupt the administrative process prematurely. Judicial intervention at this stage, and under these circumstances would undermine the authority of the Corps, and the enforcement of the Act.

The defendants' motion must be and is hereby allowed. Complaint dismissed.