United States v. Whichard

No. 797 Civil (E.D.N.C. February 7, 1974)

The court grants summary judgment against the defendant, who excavated two canals on private property adjacent to the Pamlico River without first obtaining a permit from the Army Corps of Engineers, holding that such action constitutes a violation of § 403 of the Rivers and Harbors Act. The court rules that the canals interfere with the navigability of the river by diverting water from it and thus altering the condition of its channel. The canals are held to connect to the river despite the presence of a "block" or plug of earth at the mouth of each, since the blocks are impermanent and drainage ditches from the canals empty into the river. The court finds that a proper award of damages cannot be determined at this time in view of the fact that the defendant has not completely unblocked the canals, and orders a hearing onthe issue at a later date.

Counsel for Plaintiff
Thomas P. McNamara U.S. Attorney
P.O. Box 26897
Raleigh, N.C. 27611

Counsel for Defendant
W. B. Carter, Jr.
327 N. Market Street
Washington, N.C. 27889

[4 ELR 20819]

Larkins, J.

[4 ELR 20820]

MEMORANDUM OPINION and ORDER

This suit was brought under Title 33 U.S.C. § 401 et seq. to restrain and enjoin defendant from further excavation and fill on his property adjacent to the Pamlico River and to compel him to restore the area to its original state. On July 13, 1973, this Court entered a preliminary injunction restraining defendant from further excavation and fill and continued the hearing on the permanent injunction or alternative damages until the completion of discovery. On September 28 this Court partially allowed the Government's motion to strike defenses.

This cause is now before the Court on the Government's motion for judgment on the pleadings. The Government contends that in lieu of the defendant's answers in paragraphs 8 and 9 of his second defense, he has admitted violating Title 33 U.S.C. § 403. The defendant argues that although he admits performing certain work, he denies that such was unlawful, and the Government must prove certain facts to show that the admitted acts were unlawful. A hearing was held in New Bern, North Carolina on October 15, 1973, and 30 days was allowed to depose Mr. Whichard as an aid to the Court in making its determination. Due to a heavy calendar, the Court has not been able to determine this cause until now.

Section 403 of the Rivers and Harbors Act provides in part:

". . . it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same."

In his answer to paragraph 8 of the Complaint, defendant admitted digging and excavating two unnamed channels on his property which are connected to the navigable waters of the United States, to wit, the Pamlico River. He further admitted that he did not have a Department of the Army permit as required. Defendant contends that even if the canals connected with the River, the Government must prove the two canals create an obstruction to the navigable capacity of the River, or alter or modify the course, location, condition or capacity of the channel of that River. This Court does not agree. By excavating canals and connecting them to the Pamlico River, the defendant diverted water from that navigable body of water and altered the course, location, condition, and capacity of its channel. Such a diversion constitutes an alteration or modification of the navigable capacity of the channel of a body of water, and can only be done with a proper permit. It was held in United States v. Moretti, 331 F. Supp. 151 (S.D. Fla. 1971).

"The authority of the United States over navigable water extends to the ordinary high water mark and any work done below this line without prior authorization is illegal. . . . (cites omitted). When excavation or filling is undertaken without authority from the Secretary of the Army as delegated to the Chief of Engineers, that constitutes a violation of Title 33, United States Code, Section 403."

Despite his sworn answer to the contrary, defendant tries to state in his deposition that the canals do not connect with the River. (dep. pp. 4, 5, 8, 10, 11). However, it appears from the photographs in the record and defendant's deposition that the "block" or "plug" between the canals and the River is not of a permanent nature and could easily be washed away in a flood. Defendant admits placing spill on the sides of the canals (dep. 3, 4) and admits that a ditch across the top of the block drains the canal (dep. 10). In fact, this ditch, though not navigable itself, probably led defendant to answer that the canals were connected to the River. And due to the washable nature of this block, it seems that the connection is a valid one. It is the conclusion of this Court that the admitted digging and excavating of the canals on defendants's property, the placing of spill on the sides of the canals, and the connection of the canals with the Pamlico River as admitted, without a permit from the United States Department of Army, is an alteration of the course and condition of the Pamlico River and constitutes a violation of Title 33 U.S.C. § 403. Therefore the Government's motion for judgment on the pleadings will be allowed.

This leaves for the Court the issue of damages. In view of the fact that the defendant has not completely unblocked the canals, the issue of damages is unresolvable at this time. The Court agrees with the defendant that a proper award of damages cannot now be determined. Therefore, it is hoped that the parties will prepare their cases regarding damages so that a hearing on such can be held in the near future.

The Court notes that the defendant has moved to compel answers to certain interrogatories. It appearing to the Court that the answers were not needed prior to ruling on the motion for judgment on the pleadings, they were not ordered sooner. However, some of the questions propounded may help the defendant in establishing its case on damages. Therefore, the Government is ordered to answer the interrogatories within 30 days of the filing of this ORDER.

NOW THEREFORE, in accordance with the foregoing, it is

ORDERED, that the Government's motion for a Judgment on the Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure be treated as a motion for summary judgment and such motion is ALLOWED, and

FURTHER ORDERED, that the Government answer defendant's interrogatories within 30 days of the filing of this ORDER, and

FURTHER ORDERED, that a hearing be set on the issue of damages at a later time, and

FURTHER ORDERED, that the Clerk shall serve copies of this ORDER upon counsel of record.

Let this ORDER be entered forthwith.