United States v. Appleton

No. 6798 (M.D. Tenn. April 25, 1974)

The court issues a mandatory injunction requiring the defendant to remove a permanent bridge which he constructed across a tributary of the impounded Cumberland River without seeking a permit pursuant to the Rivers and Harbors Act of 1899. The authority of the United States over navigable waters extends to the regulation of a tributary stream to the extent that its high water level is the same as that of the main body of navigable water into which the tributary flows. The bridge in this case was constructed at a point below this high water level and becomes submerged during periods of high water, thus impeding navigation up the tributary. The government need not prove that such an unauthorized obstruction was unreasonable in order to obtain injunctive relief under the statute, nor does defendant's assertion that the injunction is inequitable since it will require substantial expenditures alter the clear provisions of the Act.

Counsel for Plaintiff
Charles H. Anderson U.S. Attorney
U.S. Courthouse
801 Broadway
Nashville, Tennessee 37203

Counsel for Defendant
Thomas N. Bateman
221 S. Third Street
Clarksville, Tennessee 37040

[4 ELR 20436]

Morton, J.

MEMORANDUM

The United States seeks a mandatory injunction to require defendant to remove a permanent bridge which he constructed across Big McAdoo Creek, a tributary to the Cumberland River in the Lake Barkley project. The bridge was allegedly constructed in violation of 33 U.S.C. § 401, and injunctive relief is being sought under 33 U.S.C. § 406.

The Cumberland River is a navigable waterway subject to regulation by the Government under the Commerce Clause of the United States Constitution. By Public Law 780, Vol. 68, Part 1 of the United States Statutes at Large, Congress, in passing the Rivier and Harbor Act of 1954, authorized improvements of the Cumberland River in Kentucky and Tennessee in the following language:

"That the following works of improvement of rivers and harbors and other waterways for navigation, flood control and other purposes are hereby adopted and authorized . . . ."

Barkley Dam was constructed as a result of this legislation.

Pursuant to the Barkley Dam project, the Government purchased interests in property located on both sides of Big McAdoo Creek. Some of the acquisitions vested fee simple title to the land in the Government, and others vested only flowage easements. At the site in question in this lawsuit, one end of the bridge rests on land owned by the Government in fee and the other upon land in which the Government has a flowage easement.

Before construction of Barkley Dam the ordinary high water of the Cumberland River was 355 feet mean sea level. Since the dam's completion the minimum pool is 354 feet mean sea level and the ordinary high water of Lake Barkley is 362 feet mean sea level. The bridge in question is situated approximately 500 feet above the mouth of McAdoo Creek, and lies below 350 feet mean sea level. At this point the creek has an approximate depth of 6 or 7 feet during normal conditions, and during flood conditions the waters are much deeper. When the waters are elevated by heavy rains, the bridge may be covered by water and thereby obstruct boat travel going upstream. Recreational fishing is common in the creek, and is frequently carried on upstream of the site in question.

After completion of Barkley Dam, in 1968 the Government leased to defendant for grazing purposes a portion of its property which it had acquired in fee simple title. Simultaneously, defendant, following the prescribed administratives steps, applied for a permit to build a floating bridge across Big McAdoo Creek. On February 7, 1968, conditional upon execution of the lease, defendant's bridge plan was approved. Some time later the floating bridge was completed, all construction being in accordance with approved plans and specifications. The bridge was later destroyed during a flood, and defendant alleges that he approached officials of the United States Corps of Engineers in Nashville and obtained verbal approval from unidentified individuals to build a permanent steel bridge across McAdoo Creek. Then, allegedly relying upon this oral grant of permission, defendant built the steel bridge now under consideration on or about June, 1971.

The Cumberland River, including the Lake Barkley development, is a navigable waterway of the United States and is navigable in interstate and foreign commerce. It is also used extensively by recreational vessel owners. The River and Harbor Act of 1899 prohibits construction of bridges across navigable waters without the consent of Congress. As a condition precedent to obtaining consent, plans for proposed bridges must be submitted to and approved by the Chief of Engineers and by the Secretary of the Army. 33 U.S.C. § 401. The Bridge Act of 1906 required any person having consent of Congress to build a bridge across navigable waters to submit plans and specifications for the bridge together with drawings of the proposed construction and a map of the proposed location to the Chief of Engineers and the Secretary of the Army for approval. Once plans are approved, it is unlawful to deviate therefrom without approval of proposed modifications. 33 U.S.C. § 491. Consent of Congress was given to construction of bridges across navigable waters by the General Bridge Act of 1946, with the requirements of submission of plans to, and approval of such plans by, the Chief of Engineers and Secretary of the Army being retained. 33 U.S.C. § 525. In 1967 the functions of consideration and approval of plans for bridges across navigable waters were transferred from the Chief of Engineers and Secretary of the Army to the Department of Transportation. 49 U.S.C. § 1655(g)(6).

It is settled law that the authority of the United States over navigable waters extends to the ordinary high water mark and any work done below this line without appropriate permits is illegal. United States v. Joseph G. Moretti, Inc., 331 F. Supp. 151 (S.D. Fla. 1971); United States v. Kansas City Life Insurance Co., 339 U.S. 799 (1950). This principle extends to the ordinary high water mark of tributary streams. United States v. Kansas City Life Insurance Co., supra. It would reasonably seem to follow, therefore, that the Government has the right to regulate the construction of bridges across tributary streams at less than the high water mark of the navigable stream into which the tributary flows.

However, we are not limited to that consideration alone in this case. Congress has stated that for some purposes, notably for improvements in rivers, harbors and other waterways, the term "commerce" includes "the use of waterways by seasonal passenger craft, yachts, houseboats, fishing boats, motor boats, and other similar water craft, whether or not operated for hire." 33 U.S.C. § 541. Courts as well have recognized the commerce-related nature of bodies of water which are attractive to interstate travelers as a source of recreation. 33 U.S.C. § 541. See, United States v. Underwood, 344 F. Supp. 486, 492 (N.D. Fla. 1972). To arbitrarily limit the [4 ELR 20437] meaning of navigable waters to the principal body as distinguished from those existing within the tributary system seems unrealistic. It seems clear to the court that Big McAdoo Creek, to the extent that its high water level is the same as the main body of the navigable water (Barkley Lake and Cumberland River), is a part of the navigable water system. Furthermore, it is used by fishermen and boaters as is the main body of water. Therefore, it is the holding of this court that, at the place where defendant's bridge is located, Big McAdoo Creek was a part of the navigable water system of this country and was therefore subject to the provisions of 33 U.S.C. § 401, et seq.

The defendant asserts that it would be inequitable and unreasonable to require him to expend the substantial sum of money necessary to remove the bridge, and that injunctive relief should not be granted.However the Government does not have to allege or prove that an unauthorized obstruction was unreasonable in order to prevail in a civil action under 33 U.S.C. §§ 403 and 406. United States v. Benton & Company, 345 F. Supp. 1101 (M.D. Fla. 1972). The provisions of 33 U.S.C. § 406 are clear in authorizing the Government to seek injunctive relief. Furthermore, the Government in order to obtain an injunction, does not have to show the absence of an adequate remedy at law. United States v. Underwood, supra, at 494. See also, Schaffer v. United States, 229 F.2d 124 (5th Cir. 1956).

Defendant attempts to justify his bridge construction on the basis of the alleged oral approval received from unidentified officers of the Corps of Engineers. The court finds no merit in this position, and finds it unnecessary to cite authority for the proposition that a Corps of Engineers employee cannot approve bridge construction subject to statutory prerequisites which were not followed by the builder.

The court therefore holds that the Government is entitled to the relief sought and an injunction shall issue. An appropriate order shall be drawn by the Government and submitted to the courts within ten (10) days from the date of entry of this Memorandum.