United States v. Diamond

No. 3092 (S.D. Ga. April 17, 1974)

A landowner who dumps debris into a marshland area of a navigable river with the intent of filling the marsh, thereby damaging the ecological balance of the river, must have a permit from the Army Corps of Engineers. Failure to have a permit when depositing refuse in a navigable waterway constitutes a violation of the Rivers and Harbors Act of 1899. Although the landowner did attempt to get an after-the-fact permit and by so doing forced the decision to be delayed until the Army acted, the rejection of the application by the Corps of Engineers requires an order to cease further dumping and to remove material already dumped. The grant of a permit to a dock facility does not establish a harbor line within which the prohibition against filling does not apply. The landowner is permanently enjoined from filling activities in the area.

Counsel for Plaintiffs
R. Jackson, U.S. Attorney
B. Smith, Jr., U.S. Attorney
Lamar C. Walter, Asst. U.S. Attorney
P.O. Box 8999
Savannah, Ga. 31402

Counsel for Defendant
Henry Diamond, pro se
31610 Mecceo Dr.
Savannah, Ga. 31404

[4 ELR 20510]

Lawrence, J.

This cause came on to be heard on the complaint of the United States of America, plaintiff, and the Court having heard oral evidence and admitted exhibits in open court and the Court having entered its findings of fact and conclusions of law on April 17, 1974, and it further appearing to the court that the defendant is committing acts and is about to commit acts as set forth in plaintiff's complaint, and will continue to do so unless restrained by order of this court, and that the said acts have caused irreparable injury and damage to the marshlands described in the complaint and that immediate and irreparably injury, loss or damage to the described area will result and that the activities described in the complaint have been conducted by Herman Diamond without a permit from the Secretary of Army as required by 33 U.S.C. Section 403 and are in direct violation of the laws of the United States.

IT IS ORDERED, ADJUDGED AND DECREED that the defendant Herman Diamond, his servants, agents, employees, attorneys, successors, and assigns, and each of them, be permanently enjoined and restrained from engaging in or permitting, suffering, or causing directly or indirectly, any fill or construction operations on the area in dispute, bounded on the north by Richardson Creek and on the south by Oatland Island Road, Chatham County, Georgia.

FINDINGS OF FACT AND CONCLUSIONS OF LAW JUDGMENT AND ORDER

The United States brought this action for preliminary and permanent injunction against Herman Diamond, pursuant to 33 U.S.C. §§ 403 and 407, in connection with an allegedly unauthorized fill of marshland in Chatham County, Georgia. The State of Georgia intervened in the action on April 7, 1973, and sought a permanent injunction against further filling or altering the coastal marshlands of the State. Both the United States and the State of Georgia seek mandatory relief in the way of removal of the fill material placed by defendant in the marsh area involved.

On April 8, 1973, this Court issued a Temporary Restraining Order in connection with the depositing or dumping by defendant of refuse of any kind in the marshlands along Richardson Creek. This Order expired after ten days but has been kept in effect by oral direction of the Court at at least two of the several evidentiary hearings in the case. My notes and the records of the Court reflect that such hearings were held during 1973 on May 28th, August 10th, August 29th-30th, September 4th and November 8th.

On June 14, 1973, defendant filed with the Corps of Engineers an application for an After-the-Fact Permit in regard to the fill. The application has been pending since that time and until a recent date. Mr. Diamond who appears as his own counsel has on at least two occaions urged that this Court is not empowered to grant mandatory injunctive relief in view of the fact that the administrative remedies in connection with his After-the-Fact Permit had not been acted upon by the Corps of Engineers. See United States v. Moretti, 478 F.2d 418, 430 (5th Cir.).¹

On two occasions I urged the Corps of Engineers to expedite the handling of the permit in question.

Acting on matters affecting environment, ecology and wildlife is a time-consuming process and involves consideration by numerous Government and state agencies. See 33 C.F.R. § 209.120(7)(d).²

On March 26, 1974, the Department of the Army found that the issuance of an After-the-Fact Permit to Mr. Diamond "for the proposed and existing fill will not be in the public interest, and therefore, the permit is hereby denied."

Findings of Fact

1. In 1965 Charles Wood, Sr., and Herman Diamond acquired certain marshland bounded on the north by Richardson Creek and on the south by Oatland Island Road. The fill is located on a portion of the land described in this deed.

2. In 1969 Mr. Wood conveyed his one-half interest in a 100-foot strip of the marsh to the defendant. In 1972 Mr. Diamond obtained a deed from Wood conveying the latter's one-half interest in a fifty-foot strip of marshland adjoining the 100-foot parcel above described and located immediately to the east thereof.

3. Richardson Creek forms part of the web of creeks and rivers that traverse the marshes of Chatham County and coastal Georgia. Richardson Creek makes off of the Wilmington River near Causton's Bluff. The Wilmington is one of the major tidal rivers of Chatham County and comprises several miles of the Intracoastal Waterway. From their confluence Richardson Creek flows through the salt marshes in a generally easterly direction and eventually goes into Turners Creek. In turn, the latter empties into the Wilmington River at a point approximately 8 or 10 miles from [4 ELR 20511] its mouth at the head of Warsaw Sound. The Sound borders the Atlantic Ocean.

4. Along Richardson Creek are located houses and numerous privately-owned docks. Mr. Diamond himself owns a floating dock in Richardson Creek at the end of the marshfill. The creek is navigable at that point for cabin cruisers as long as 45' in length.

5. There was testimony (which I credit) that Richardson Creek is navigable throughout its extent at low tide and that it has a maximum depth at mean low water of 4.8' in the area involved. The mean depth is 2 1/2' to 3' at mean low tide.

6. At mean high water all of the marsh lying to the eastward of the Diamond Fill is inundated.

7. In 1931 the Corps of Engineers classed Richardson Creek as a tributary of Warsaw Sound and as being navigable throughout. See "Report on navigablility of Streams Entering the Atlantic Ocean Between Tybee Creek and Warsaw Sound, Inclusive." The Report classifies Richardson Creek as "Unquestionably Navigable: In Present Commercial Use by Boats of 6-Foot draft or Over" and that it is navigable for its full length of 5.9 miles.

8. Richardson Creek is navigable within the meaning of the Rivers and Harbors Act of 1899 (33 U.S.C. §§ 403, 407) and the Regulations promulgated pursuant thereto.

9. Government's Exhibit No. 6 is a 1964 aerial photograph which includes the coastal area concerned in this litigation. It demonstrates that at that time the fill area constituted marshland. The photograph also shows a very small creek or rivulet running from Richardson Creek southward through what is now the filled area of the marsh. A 1973 survey (Government's Exhibit No. 1, August 29, 1973) reveals traces of the rivulet at its mouth on Richardson Creek.

10. In June, 1968, Mr. Diamond obtained from the authorities of Chatham County a Permit for a "rubbish land fill." See Defendant's Exhibit No. 2, May 28, 1973. An inspection report attached to the application therefor revealed that in January, 1970, the fill "is just about completed" and that it was "just a question of more dirt." Government's Exhibit No. 1, August 10, 1973.

11. Mr. Diamond testified that the purpose of the fill in question was to erect a house and that he could not obtain a County building permit for building same without additional highland.³ Transcript, May 28, 1973, 101.

12. At the hearing on September 4, 1973, M.C. Anderson who is engaged in the land-clearing business testified that he had placed numerous truckloads of fill in the marsh at Mr. Diamond's request. He began the marshfill in 1966 and his activities continued through 1969. He fill was described by Anderson as consisting of roots, stumps, logs, leaves, dirt and debris. Transcript, September 4, 1973, 9-11.

13. Mr. Diamond testified that he did not in fact give Mr. Anderson permission to dump on the land in question. Transcript, May 28, 1973, 99-100. He stated that "all these landscape clearing gentlemen - there were a dozen of them - they had no place to dump their fill, and they dump it anywhere that their trucks could find a hole. It was very convenient for them to come off of East Pine, which was building very rapidly . . . We weren't there and couldn't watch it but when we come there a month or six weeks later, and see this fill and call the police on several occasions." Mr. Diamond denied that anyone ever had his permission to place material in the area in question. Transcript, May 28, 1973, 102-103.

14. Mr. Diamond's fill first came to the attention of the Corps of Engineers in June, 1972, when Government representatives made a routine inspection of unauthorized dumping and filling in marsh adjacent to Richardson Creek. By letter dated June 12th the District Engineer requested Diamond to stop any further filling of the marsh and to take necessary steps to contain any and all material that may be displaced by tides, storms or floods into navigable waters or their tributaries. He was furnished copies of excerpts from Title 33, U.S.C. §§ 403, 406, 407, 409, 411 and 412.

15. Mr. diamond responded to the District Engineer by letter dated June 16, 1972, stating that he had reviewed the material furnished to him and did not feel his property was subject to the Corps of Engineers' jurisdiction.

16. On August 29, 1972, the District Engineer advised defendant that he had reviewed the file and had determined that the property was subject to regulatory authority of the Corps of Engineers and that the fill had been placed in the marshland without and Permit. Mr. Diamond was requested either to remove the fill and restore the marshland to its original condition or file an application for a Department of the Army Permit.

17. Dr. Frederick C. Marland who is Director of Marshland Protection, Georgia Department of Natural Resources, testified that he visited the fill site on August 6, 1972, and advised Mr. Diamond that the work in progress was unauthorized. At that time, Dr. Marland observed some activity and equipment on the fill.⁴ Transcript, May 28, 1973, 43.

18. Dr. Marland again visited the site in April, 1973. He testified that he observed the defendant pushing mounds of dirt into the marsh. Transcript, 48.

19. At that time he advised Dr. Marland that he was not going to apply for a Permit. After being warned that his actions were illegal, Mr. Diamond, according to Marland, said "he was going to dump and watch him. And he did." Transcript, May 28, 1973, 48.

20. Under the evidence in this case, it is clear that Diamond had determined to fill the marshland area in question; that he obtained a County Permit to do so; planned to erect a house on the fill, and caused or knew that the marsh area in issue was being filled with stumps, debris, logs and dirt. Defendant filled the two-acre marsh area without a Permit from the Army and continued to fill after being warned that such activity was illegal.

21. The Court finds, under the evidence, that the mean high water elevation in Richardson Creek at a point in front of the Diamond fill is 7.4' above mean low water. As stated, at mean high water all of the marsh lying to the east of the Diamond fill is inundated and the area filled in by Mr. Diamond would have been inundated at mean high water had not the same been filled. Government's Exhibit No. 1, August 29, 1973 (a topographic survey of the filled area) reflects that all elevations in the marshland to the east of the fill are below the mean high water elevation in the vicinity.

22. Earl F. Titcomb, Jr. who is Chief of the Geologist Section, Corps of Engineers testified as to the nature of the substance retrieved from drillings (ordered by the Court) on the site in controversy. In one instance a hole was drilled to the extent of 17 feet and in others 12 feet. Transcript, August 29, 1973, 26, 35. At a depth of 3 feet to 4 1/2 feet material was found that did not appear to be indigenous to the marsh. p. 37. At a depth of 9 feet to 10 1/2 feet "fat clay" was found which is definitely a type of material found in marshland. At 6 feet to 7 1/2 feet material retrieved by boring contained what could clearly be discerned as marsh grass. p. 44. In the drilling zone denominated as "C" bits of marsh grass and peat found represented, in the opinion of Mr. Titcomb, "the natural ground surface" while the material taken from Zone "B" ("black, silty sand") represented "the material brought in." p. 50. The surface of the marsh as it existed prior to the fill was established by the borings as being at an elevation starting below mean high water.

23. At the hearing on September 4, 1973, a Government witness, Mark Horton, who is a Fisheries Biologist in the Bureau of Sports Fisheries and Wildlife, Florida, testified that in June, 1973, a bait trawl was made along Richardson Creek, including the area in front of the Diamond marshfill. It produced a catch of croaker, pinfish, white shrimp, brown shrimp, hogchoaker and blue crab. Crab and shrimp eat the organic matter produced by the marsh grass. The shrimping industry in Georgia is a sizeable one yielding an annual harvest of around $6,000,000. Transcript, September 4, 1973, 44-47. Marsh grasses (spartina alterniflora) are a vital link in the food chain of many species of marine life.⁵ Marshlands are the nursery [4 ELR 20512] of the sea.

24. The destruction of marshland has a definite effect on marine ecology. Of course, it varies with the size of the altered area. What the statute and regulations require is that before any marshland over which the federal government has jurisdic tion is filled a Permit must be obtained from the proper authorities. None was issued to Mr. Diamond. The fact that the effect on ecology or navigation might be small is not the controlling factor.⁶ There was and is a deleterious effect in the instant case on both.

25. The Rivers and Harbors Act of 1899 (33 U.S.C. § 407) makes it unlawful to discharge, deposit or cause to be discharged or deposited refuse of any kind in a navigable water. Fill was placed or caused to be placed in the marsh area in question by Mr. Diamond. Some of it has washed into Richardson Creek during high tides and heavy rains.

26. The filling in of the marsh area with logs, stumps and debris offers a potential threat to navigation in the event of storms, hurricanes or other abnormal tide or wind conditions which miht carry such material into the stream.

CONCLUSIONS OF LAW

1. This Court has jurisdiction, pursuant to the provisions of 28 U.S.C. §§ 1333 and 1345 and 33 U.S.C. §§ 403, 406, 407, 411, 413.

2. For regulatory purposes the jurisdiction of the Corps of Engineers as to "navigable waters" extends "laterally to the entire watr surface and bed of a navigable water body." It "includes all the land and waters below the original high water mark." In coastal areas jurisdiction extends to the line on the shore reached by the plane of the mean (average) high water. Marshlands are "navigable in the law" only so far as the area is "subject to inundation by the mean high waters." 37 Federal Register, No. 176, Part 209.260. See United States v. Lewis, supra.

3. The fill area is within the navigable waters of the United States as defined by interpretative Regulations which have a basis in existing and current case law.

4. The defendant filled in and altered the marshland without prior approval of the Corps of Engineers and the Secretary of the Army in violation of the Rivers and Harbors Act of 1899 and in doing so has irreversibly altered the natural condition of the site and irreparably damaged the environment and ecology.

5. It is plain that under United States v. Moretti, supra, at 431, when an After-The-Fact Permit is sought a federal judge has no power to cut off the statutory or administrative scheme of relief and substitute his judgment for that of the Corps of Engineers and the Department of the Army made in collaboration with departments or agencies under environmental statutes. In other words, this Court has been unable since June, 1973, to order mandatory relief in the way of the removal of the fill. The Department of the Army has, as noted, refused the issuance of an After-The-Fact Permit. On March 26, 1974, the Corps of Engineers through the District Engineer, Colonel Edwin C. Keiser, informed Mr. Diamond that "all of the debris, fill material, and bulkhead are to be removed from marshland below the historic mean high water line to a level of the original marsh elevation and placed in an approved disposal area. The above is to be accomplished not later than 120 days from receipt of this letter." The Regulation provides:

"Where after-the-fact authorization is not determined to be in the public interest, the notifdication of the denial of the permit will prescribe any corrective actions to be taken in connection with the work already accomplished and establaish a reasonable period of time for the applicant to complete such actions. The District Engineer, after denial of the permit, will again consider whether civil or criminal action is appropriate." See 39 Federal Register § 209.120 (12) (c) (v).

6. In 1965 the Corps of Engineers issued to Mr. Diamond a Permit to construct a dock in Richardson Creek at the site described. See Government's Exhibit No. 5, May 28, 1973. The defendant contends that the issuance thereof established the "harbor line" under the Regulations of the Corps of Engineers or that subject and that he was not required to obtain a Permit for filling in marshland between the harbor line so established in view of 33 CFR § 209.150 (2). It provides:

"Applications for permits for work in navigable waters shoreward of harbor lines shall be filed and processed in accordance with the provisions of applicable sections of this part. For work already completed or commenced in conformance with existing harbor line authdority before that date, no permit is required."

The grant of the Permit in 1965 as to the dock facility did not constitute establishment of any harbor line. The testimony at the hearings showed that harbor lines are established only in designated harbors and waterways and that the Secretary of the Army has not so designated Richardson Creek. The dock permit conferred no right on defendant with respect to filling the marsh between that point to the shore or highland. In United States v. Stoeco Homes, Inc., 359 F. Supp. 672, 678 (D.N.J.) it is said:

"Defendant argues that the Government established federal harbor lines or ratified State harbor lines and that as a result it was relieved of the requirement to obtain a permit for work done shoreward of those harbor lines. This is incorrect in fact and in law. The Federal Government has not established harbor lines in the Back Thorofare area, nor has it, otherwise, ratified or adopted whatever State harbor lines may exist in this area. The presence of federal harbor lines, however, is irrelevant to the requirement of obtaining an appropriate federal permit for work in navigable waters."

ORDER AND JUDGMENT

The recent action of the Corps in denying an After-The-Fact Permit is judicially reviewable under the Administrative Procedure Act, 5 U.S.C.A. §§ 702, 704. See Moretti, at 432. As I view things, the enforcement of the law and regulations and the employment of appropriate sanctions to that end in this case has become an administrative function in view of the application for the Permit and the declination thereof by the Corps of Engineers. The proper procedure for this Court is to abstain from granting any mandatory injunctive relief to plaintiff in this case, leaving the defendant to pursue his administrative remedies or such judicial appeals as he may take. Meanwhile, jurisdiction will be retained and the case will remain on the docket of this Court in the event the plaintiff hereafter requests judicial enforcement of its demand as to removal of the fill within 120 days.

The action of the Corps in declining a permit does not affect the power of this Court to determine the matter of jurisdiction and to grant a permanent injunction as to further construction or filling by the defendant.

It is therefore ordered, adjudged and decreed that the defendant, Herman Diamond, his servants, agents, employees, attorneys, successors, and assigns and each of them be permanently enjoined and restrained from engaging in or permitting, suffering, or causing, directly or indirectly, any fill or construction operations on the area in dispute, bounded on the north by Richardson Creek and on the south by Oatland Island Road, Chatham County, Georgia.

[4 ELR 20513]

Counsel for plaintiff may present a form of judgment and decree in conformity with this Order. Since a permanent injunction has been granted a direct appeal will in all likelihood lie if notice thereof is filed within 30 days of the filing of such judgment and decree.

This April 17th, 1974.

1. In Mr. Diamond's brief on November 19, 1973, he pointed out that he had filed an After-the-Fact Permit and that an official of the Corps of Engineers "has tried in every way to delay this permit."

2. Under the Environmental Policy Act the Army "must consult with, consider, and receive, and then evaluate the recommendations of all of these other agencies articulately on these environmental factors." Zabel v. Tabb, 430 F.2d 199, 213 (8th Cir.); 33 CFR § 209.120(b).

3. ". . . the County required twenty thousand square feet. We didn't quite have twenty thousand square feet of high ground, we only had about fourteen thousand. So, I asked Mr. Blitch if we could, and he said they have no provisions to issue any permit for that type of fill. That we were well out of range of any channel in the river or the low water mark."

4. Defendant's Exhibit No. 1 (August 10, 1973) shows that on April 4, 1973, he purchased six loads of dirt for $54. Mr. Diamond explained that this was due to erosion of the top area of the fill by reason of high tides. Transcript, May 28, 1973, 98-99.

5. "The importance of tidal marshes in the life cycle of living organisms has commended them to such characterizations as 'the most productive areas on earth' and as a 'factory' of basic animal and plant nutrients . . . . A multitude of life forms are indigenous to tidal marches, . . ." See James M. Kramon, "Section 10 of the Rivers and Harbors Act: The Emergence of a New Protection for Tidal Marshes," Maryland Law Review (1973), XXXIII, 231, 235.

"A Georgia salt marsh can outperform an average wheatfield several fold in organic production. The same author says that at least two-thirds of the nation's commercial fishing resources are made up of species that 'spend part of their life cycle in estaurine areas.' Ludwik v. Tetclaff, 'The Coastal Zone-Control Over Encroachments in the Tidewaters,' Environmental Law Review (1972), 618, 619. Georgia's Spartina alterniflora marshes produce five to nine tons of plant material an acre a year. 'Can We Save Our Salt Marshes,' National Geographic, Vol. 141 (June, 1972), p. 733." See United States v. Lewis, 355 F. Supp. 1133, note 10 (S.D., Ga.).

6. ". . . works in wetland areas, particularly estuarine areas . . . are often carried out in an uncoordinated and haphazard manner, and the result is the piecemeal destruction of valuable wetlands, marshes, and coastal estuarine areas." House Comm. on Gov't. Operations, Increasing Protection for Our Waters, Wetlands, & shorelines: The Corps of Engineers, H.R. Rep. No. 1323, 92d Cong., 2d Sess. at 7 (1972).