United States v. Eugene Sand & Gravel, Inc.

Civil No. 75-258 (D. Or. August 24, 1976)

When the Willamette River breached its bank in 1971, defendant's property onto which it flowed became subject to the federal government's navigation servitude. Defendant was therefore required under the Rivers and Harbors Act of 1899 to apply for and obtain a Corps of Engineers permit before "repairing" or "diking" the breach. A navigable river is navigable wherever it flows, and the fact that the main channel of the river did not shift through the bank is immaterial. The Corps has no duty to consider an after-the-fact permit application, and may enforce either the removal or the reconstruction of fill material discharged by the riparian owner in the course of repairing the pre-existing bank which may eventually obstruct the river's navigable capacity through erosion or collapse. Defendant is therefore ordered to reconstruct the dike according to government specifications. The court also assesses a $500 civil penalty under the Federal Water Pollution Control Act Amendments of 1972 for damage to fishery resources and directs that it be paid to the Oregon Department of Fish and Wildlife.

Counsel for Plaintiff
Sidney I. Lezak, U.S. Attorney
Thomas C. Lee
Jack Collins Asst. U.S. Attorneys
P.O. Box 71
Portland OR 97207
(503) 221-2765

Counsel for Defendant
John E. Jacqua
Jacqua & Wheatley
825 East Park St.
Eugene OR 97401
(503) 686-8485

[6 ELR 20733]

Belloni, J.:

MAGISTRATE'S RECOMMENDATION AND ORDER

Plaintiff, the United States of America, moves the court for an order striking certain of defendants' defenses from the pleadings pursuant to Fed. R. Civ. P. 12(f).

There are some facts outside the pleadings which are stipulated or otherwise beyond dispute and should be considered in deciding these motions. Therefore, these motions will be treated as motions for partial summary judgment pursuant to Fed. R. Civ. P. 56. Ciprari v. Servicios Aereos Cruzeiro do sul S.A., 245 F. Supp. 819 (S.D.N.Y. 1965).

Plaintiff's first motion is to strike defendants' First Affirmative Defenses to Count I of plaintiff's Supplemental Complaint.

Defendants allege that their actions have consisted of the repair of a levee in 1974, which was damaged by flood waters in 1971, 1972 and 1973, without obtaining a Corps of Engineers' permit but pursuant to their right as riparian owner to protect their property from the river.

Plaintiff argues that defendants are attempting to carve an exception out of the coverage of the Rivers and Harbors Act which will justify construction in navigable waters without a permit. The Supreme Court has denied the creating of exceptions by implication to the Rivers and Harbors Act on several occasions. United States v. Standard Oil Co., 384 U.S. 224 (1965). Wyandotte Transportation Co. v. U.S., 389 U.S. 191 (1967), United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655 [3 ELR 20401] (1973).

It is beyond question and the court takes judicial notice that the Willamette River is a navigable waterway in the main channel adjacent to defendants' property and the bank or levee in question. The government argues that when the Willamette River breached the bank (government's term), or dike (defendants' term), in 1971, and began to shift onto defendants' property, that property became subject to the federal government's navigation servitude which extends from high water mark to high water mark over the bed of a non-tidal waterway.

A Corps of Engineers' permit must be obtained for construction if the area of construction is navigable, or if the construction [6 ELR 20734] will affect nearby navigable waters.

It is clear that it is necessary to obtain a permit from the Corps of Engineers under existing law and regulations before submerged land may lawfully be filled, excavated, channelled and other similar activities performed thereon . . . if the area is navigable, or if the proposed work would affect nearby navigation waters.

Tatum v. Blackstock, 319 F.2d 397, 398-399 (5th Cir. 1963).

Defendants argue that there are inadequate facts before the court to establish that their construction efforts were in a navigable area or that it affected navigable waters. Defendants also maintain that the "repair" was no within navigable waters because the main channel of the stream never ran through the "levee." This latter contention is in error because a navigable river is navigable wherever it flows, even if no navigation can take place, as along the edges, or where the river overflows. A seemingly logical presumption would be that work on a bank or dike affects nearby navigable waters and the government, by implication, asks the court to indulge in that presumption.

Defendants also maintain that the work they performed was repair work for which a permit was not required.¹ Plaintiff maintains the work was of sufficient scope to require a permit.

A motion to dismiss or motion for summary judgment cannot be decided on logical presumptions or disputed facts, but must be decided on facts as to which there is no material dispute. The factual findings concerning navigability, and the scope of defendants' work on the levee, should be made at trial, and this portion of the government's motion should accordingly be denied.

Plaintiff's second motion is to strike defendants' Third Affirmative Defenses to Count II of the Supplemental Complaint. These affirmative defenses deny that plaintiff states a cause of action against defendants in Count II of the Supplemental Complaint.

In Count II of the Supplemental Complaint, plaintiff alleges the dike constructed by defendants is inadequate to withstand the ordinary high waters and predictable flood waters of the Willamette River and that the dike will eventually collapse into the river, thereby creating an obstruction in navigable waters in violation of 33 U.S.C. § 403.

Defendants contend that no cause of action is stated in Count II because it does not alleges a present violation, but only alleges a possible future violation.

The doctrine of navigation servitude entitles the federal government to control the deposits of fill material into navigable waters from riparian owners whose land borders navigable waters to preserve the navigability and quality of those waters. United States v. Ashland Oil and Transp. Co., 504 F.2d 1317 [4 ELR 20784] (6th Cir. 1974). United States v. Holland, 373 F. Supp. 665 [4 ELR 20710] (M.D. Fla. 1974).

The government may seek injunctive relief to compel removal of an "obstruction . . . to the navigable capacity" of a waterway. United States v. Republic Steel Corp., 362 U.S. 482 (1960). An "obstruction" may conceivably consist of a bank condition which affects the navigable capacity of a waterway.

In Sanitary District of Chicago v. United States, 266 U.S. 405 (1925), the Court granted injunctive relief to prevent a planned drawing down of the water level of Lake Michigan which would have obstructed the navigable capacity of that lake. Although the Rivers and Harbors Act of 1899 can be applied prospectively, most cases also involve fact situations in which there are existing or past obstructions to navigable capacity. See United States v. Republic Steel Corp., supra, where the Court held appropriate remedies could be fashioned against discharges which had in the past, and would in the future, clog a navigable channel.

In the case at bar, the government seeks to enforce removal of a structure which allegedly will eventually obstruct the navigable capacity of the Willamette River. The government's burden of proof is heavy since it is asking a finder of fact to predict the occurrence of a future event. Nevertheless, it is not a proper affirmative defense to allege that the government cannot obtain injunctive relief to prevent future obstruction to navigation. This issue is simply a matter of plaintiff's proof, not a matter of a legal bar to the existence of the cause of action.

The government's motion to strike the defendants' Third Affirmative Defenses to Count II of the Supplemental Complaint should be granted.

Plaintiff's third motion is to strike the defenses denominated Plea in Abatement. These defenses are mistakenly denominated "Plea in Abatement" because that defense was abolished by Rule 7(c) Fed. R. Civ. P. They will be treated as motions to dismiss or stay these proceedings on the ground that defendants have not been allowed to exhaust their administrative remedies. Specifically, defendants complain that there has been no ruling on defendants' after-the-fact, or post-construction, application for a Corps of Engineers' permit.

There is no Corps of Engineers' provision for after-the-fact permit application and defendants have not presented authority for the proposition that the Corps of Engineers has any duty to consider an after-the-fact permit application, or that this court has any authority to stay this type of action pending consideration of an after-the-fact permit application.

Therefore, plaintiff's motion to strike defendants' defenses denominated Plea in Abatement should be granted.

DATED this 17th day of June, 1976.

Michael R. Hogan, United States Magistrate

After review of the file and record, I adopt the above recommendation.

The government's motion to strike the First Affirmative Defenses to Count I of plaintiff's Supplemental Complaint is denied.

The government's motion to strike the Third Affirmative Defenses to Count II of the Supplemental Complaint is granted.

The government's motion to strike the affirmative defenses to the Supplemental Complaint denominated "Plea in Abatement" is granted.

IT IS SO ORDERED.

DATED this 21 day of June, 1976.

Belloni, J.

MEMORANDUM OPINION

Belloni, J.

This action was tried to the court on July 19 and 20, 1976. Thereafter the court requested defendants to provide the court with additional evidence regarding the nature of the river bottom of the east channel of the Willamette River adjacent to their dike. Defendants have done so and plaintiff has responded. Based upon the evidence received at trial and thereafter, as requested by the court, and the records and files of this action, the opinion of the court is as follows:

1. This court has jurisdiction of the parties to this action and has jurisdiction of the subject matter of this action pursuant to 28 U.S.C. § 1345; applicable provisions of the Rivers and Harbors Act of 1899, 33 U.S.C §§ 401, 403 and 406, and of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1311, 1344 and 1319.

2. At all times material the Willamette River, and particularly its east channel, as it passes through the property of defendant, Eugene Sand & Gravel, Inc., at river miles approximately 175-176 is a navigable water of the United States in fact and in law.

3. During October and November of 1974, defendant Eugene Sand & Gravel, Inc., and defendant John W. Alltucker in his capacity as President of Eugene Sand & Gravel, Inc., constructed and caused the construction of a dike across the east channel of the Willamette River at approximately river mile 175.6 without submission to, and approval by, the Chief of Engineers and the Secretary of the Army of the location and plans for such structure, in violation of § 9 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 401.

4. In the construction of this dike, defendants used inadequate construction methods, materials and design, rendering the structure vulnerable to erosion and collapse and thereby creating a continuing obstruction to the navigable capacity of this water of the United [6 ELR 20735] States not affirmatively authorized by Congress, and in violation of § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403.

5. As a result of defendants' construction of this dike, and their excavation and filling in the east channel of the Willamette River in the course of its construction, defendants diverted the east channel of the Willamette River, thereby altering and modifying the course, location, condition and capacity of these waters of the United States without the recommendation of the Chief of Engineers and the Secretary of the Army, in violation of § 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 403.

6. During the course of defendants' construction and maintenance of this dike, defendants discharged and caused the discharge of pollutants into the Willamette River, a water of the United States, on at least two separate occasions, November 6 and 7, 1974. These pollutants consisted of pit run gravel, excavated river gravel, concrete slabs, and quarry rock, all without a permit for such discharge from the Chief of Engineers, and in violation of §§ 301, 404 and 309 of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1311(a), 1344(a), 1319(b) and 1362(6). Defendants thereby became liable to plaintiff for civil penalties to be assessed pursuant to these provisions of the Federal Water Pollution Control Act.

7. As a result of defendants' construction and maintenance of this dike, defendants have caused some loss and damage to the anadromous fish resources of the river.

8. Despite certain repairs permitted by this court during February 1976, defendants' dike remains an inadequate structure vulnerable to erosion and potential collapse. Such collapse would continue and create an additional obstruction to the navigable capacity of the Willamette River and would further alter and modify the course, location, condition and capacity of this river. In addition, such collapse could further damage the fish resource and other nearby wildlife habitat.

9. Defendants should be required, at their expense, to reconstruct this dike in accordance with the following general specifications:

(a) The placement of embankment and riprap for approximately 1700 linear feet along the existing embankment of the dike.

(b) Construction of this embankment and revetted riverward slope should conform to the following specifications.

(1) The top elevation of the finished embankment and riprap should conform with the elevation of the existing group at the upstream end of the existing embankment structure, or not less than 380.5 elevation shown on Eugene Sand & Gravel drawing dated May 19, 1976.

(2) Horizontal alignment should be uniform with no undue irregularities throughout the entire length of the embankment.

(3) The minimum top width should be 30 feet.

(4) The relevant should be placed on a slope of 1 vertical on 1.75 horizontal. Class III size riprap should be placed to a thickness of 2 feet. A toe should be constructed by placing a 2-foot thick layer of quarry stone on the river bottom to a width of 8 feet. Construction at both the upstream and downstream ends will be such as to reasonably prevent unravelling and undercutting of the revetment.

(c) All trees, brush, snags, driftwood and metal debris should be removed to the lines of excavation and in areas to be backfilled with embankment prior to placement of embankment or riprap.

(d) The embankment material should consist of pervious river gravel. It should be reasonably well graded from coars gravel to sand. Class III riprap should consist of rock sizes as specified in the following paragraph:

Not less than 90 percent of all stone to be furnished shall range in size from 25 to 800 pounds to the piece, provided that at least 75 percent by weight of the stone heavier than 25 pounds should be in sizes 200 to 800 pounds, and provided further that at least 30 percent by weight of the stone should be in sizes larger than 400 pounds. The riprap stone should be reasonably well graded from the smaller to the maximum size specified. Stones less than 25 pounds in weight, and spalls, will not be permitted in an amount exceeding 10 percent by weight of each load.

Stones to be used in construction of the riprap protection should be composed of hard, strong, durable materials that will not slake or deteriorate on exposure to the action of water or atmosphere, shall not contain cracks, joints, faults, seams or bands of minerals or deleterious materials which would result in breakage or reduction of specified stone weights or dimensions after final placement in the revetment and shall be free or expansive or other materials which would cause accelerated deterioration by exposure to project elimatic conditions. Each stone shall have a unit weight of at least 160.0 pounds per cubic foot, shall have an absorption of not more than 5.0 percent, shall have a weight loss from abrasion of not more than 20.0 percent, shall be clean and angular, and the longest dimension of any stone shall not exceed three times its shortest dimension. The weight per cubic foot shall be determined by multiplying the bulk-saturated-surface-dry specific gravity (BSSD) times 62.3 pounds per cubic foot.

(e) Stone for riprap should be placed on a prepared base in a manner which will produce a reasonably well graded mass of stone with the minimum practical percentage of voids. Riprap protection shall be placed to its full course thickness at one operation and in such a manner as to avoid displacing the underlying material. Placing riprap protection in layers will not be permitted. Riprap placing shall begin in the toe and progress up the slope. The larger stone shall be well distributed and the entire mass of stones shall be roughly graded to conform to approximate gradation specified herein. All material going into riprap protection shall be so placed and distributed that there will be no accumulations or areas composed largely of either the larger or smaller sizes of stones. It is the intent of the specifications to produce a fairly compact riprap protection in which all sizes of material are placed in their proper proportions. Hand placing or rearranging of individual stones by mechanical equipment may be required to the extent necessary to secure the results specified above. A tolerance of plus or minus 6 inches from the thickness will be allowed in the finished surface of the riprap protection, except that either extreme of such tolerance shall not be continuous over an area greater than 200 square feet. The tolerance limit will be determined on the basis of the average surface elevation within 2 square feet. Placing riprap protection by dumping into chutes or by similar methods likely to cause segregation of the various sizes will not be permitted.

10. Defendants should be required to restore the damage which their actions in the construction of the dike have caused to the fishery resources of the river by paying $500.00 to the Oregon Department of Fish and Wildlife for such purposes not later than January 1, 1977.

11. Defendants should be required to complete their reconstruction of the dike as quickly as possible and not later than November 1, 1976.

12. This opinion shall constitute the findings of fact and conclusions of law as required by Rule 52(a) F.R.Civ.P.

1. Corps of Engineers' pamphlet, "Applications for Department of the Army Permits for Activities in Waterways"

14. QUESTION. Is a Department of the Army permit required for the repair of an existing structure?

ANSWER. The owner of an existing structure not only has the right but the obligation to keep his structure in good repair. However, reconstruction or a major renovation will usually have to be authorized since such work might impact upon the public interest. You should consult with the Corps before undertaking any major repairs to an existing structure.