556 F.2d 180 | 3rd Cir. | 1977
OPINION OF THE COURT
American Dredging Company, the owner of a 2500 acre tract of land in Logan Township, Gloucester County, New Jersey, appeals from the dismissal of its complaint seeking injunctive and declaratory relief which would prevent federal officers charged with the enforcement of the Rivers and Harbors Appropriations Act of 1899, 33 U.S.C. § 401 et seq., and other federal statutes, from enforcing two cease and desist orders issued by the United States Army Corps of Engineers.
At issue is whether the landowner, having a permit from the New Jersey Department of Environmental Protection for the erection of a tidal floodgate on a stream dredged through a tidal marsh, must nevertheless apply to and obtain from the Corps of Engineers a permit for the floodgate. The landowner contends (1) that the permit is not required because the location of the proposed floodgate is not in the navigable waters of the United States; (2) that in any event the Corps of Engineers is estopped from insisting on a permit; and (3) that a statute delegates permit authority to the State of New Jersey.
The first contention is foreclosed by the opinion in United States v. Stoeco Homes, Inc.
The second contention requires some detailed reference to the facts. The property in question is bound on the north by the Delaware River, on the east by Repaupo Creek and Floodgate Road, on the southeast and south by New Jersey Route 44 and U.S. Route 130, and on the west by Raccoon Creek. Bisecting the property from the Delaware River south to Route 130 is a manmade waterway known as Klondike Ditch. The northern portion of the ditch, which extends about 4000 feet from the Delaware River, was created around 1900. In 1973, pursuant to an Army Corps of Engineers permit, the landowner dredged a
The southern extension of Klondike Ditch, as well as the proposed floodgate, were requested by the officials of Logan Township in order to provide drainage relief to areas of the Township south of Route 130 which were subject to periodic flooding. Encouraged by the Township, American Dredging applied to the New Jersey Department of Environmental Protection, Division of Water Resources, Water Policy and Supply Council, for a permit to extend the Ditch and to fill 830 acres northeast of it. On July 25, 1973, that agency issued Permit No. 5656, approving the project. The permit provides:
The applicant clearly agrees to install floodgates at or nearby the highway culverts along Klondike Creek or any extension thereof and such floodgates shall be reviewed and approved by the engineering staff of the Water Policy and Supply Council and made a part of this permit.3
While the object of the southerly extension of Klondike Ditch was to facilitate drainage through the highway culverts at low and normal tides, the object of the floodgates and associated dikes was to prevent a back-flow through those culverts when tides were abnormally high.
The landowner filed the State Permit with the Corps of Engineers shortly after it was issued, but did not file an application for a federal permit for this work. Instead, the landowner proceeded with the excavation of the southern extension. In November 1973 a Corps of Engineers inspector observed the dredging operation near Route 130. As a result the Corps of Engineers issued a letter to American Dredging on December 11, 1973, stating that a federal permit was required for such work. On January 3, 1974, American Dredging submitted additional information to the Corps of Engineers, but did not make application for a permit. The excavation of the southern extension continued without a federal permit.
In December 1974, American Dredging obtained permission from the State of New Jersey for a modification of State Permit No. 5656 to install a single floodgate rather than one at each highway culvert. It started construction of the floodgate in January 1975. On January 24, 1975, the Corps of Engineers informed it that the ditch extension violated 33 U.S.C. § 403 and directed it to cease work.
American Dredging’s estoppel argument relies upon the fact that the Corps of Engineers received a copy of State Permit No. 5656 eighteen months before its cease and desist order, and that American Dredg
This permit is not valid and no work shall be undertaken until such time as all other required approvals and permits have been obtained including, but not limited to permits and approvals from the following . United States Army Corps of Engineers.
Thus neither American Dredging nor the Corps of Engineers had any reason to assume from the mere filing of Permit No. 5656 that work could or would go forward without a Corps of Engineers permit. Even if there was a factual basis for an estoppel argument, however, United States v. California, supra would remain a barrier.
The statutory argument is predicated upon 33 U.S.C. § 566.
The judgment of the district court will be affirmed.
. 498 F.2d 597 (3d Cir. 1974).
. Id. at 610.
. Stream Encroachment Permit No. 5656, State of New Jersey, Department of Environmental Protection, Division of Water Resources, Water Policy and Supply Council, July 27, 1973.
. 33 U.S.C. § 403 provides:
The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and 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 that case the issue was raised whether the federal government could waive its ownership or its paramount rights in the submerged land of the coast of California between the low-water mark and the three-mile limit by the inaction of its agents. The Supreme Court found on the facts of the case that no such waiver had taken place. The Court went on to say that even assuming such a waiver, the interests of the federal government were greater than the state interests and so would make such a waiver ineffective: “The Government, which holds its interest here as elsewhere in trust for all the people, is not deprived of those interests by the ordinary court rules designed particularly for private disputes over individually owned pieces of property; and officers who have no authority at all to dispose of Government property cannot by their conduct cause the Government to lose its valuable rights by their acquiescence, laches or failure to act.” 332 U.S. at 40, 67 S.Ct. at 1669 (footnote omitted).
. 33 U.S.C. § 566. Improvement by or under authority of State of New Jersey
Authority is given to the State of New Jersey, or through it, to any commission, individual, corporation, or municipality, singly or collectively, designated by the legislature of said State, or by a commission appointed or authorized by said legislature, to improve the channels on the New Jersey seacoast, or any portion of said coast, or the waters adjacent thereto, lying between thirty-eight degrees fifty-six minutes and forty degrees twenty minutes north latitude, by dredging, or by the construction of piers, jetties, or breakwaters, or other river and harbor work of any description or nature adapted to attain the ends now pursued by the United States Government for the advantage of said coast or the relief of commerce: Provided, That such operations shall not encroach upon those portions of said coast, or the channels adjacent thereto, for which the United States Government may undertake similar work according to its own plans: And provided, That the plans for said work shall be placed on file with the Chief of Engineers of the Department of the Army for thirty days, during which time he is authorized to disapprove said plans and forbid such work if, in his judgment, the improvements when completed will interfere with navigation or with any works of the United States Government commenced or proposed to be made: Provided further, That no tolls or other charges upon commerce shall be imposed by those making such improvements: And Provided further, That this section shall not be construed as affecting in any way the jurisdiction and control of the Federal Government over any waters that may be improved in pursuance of the provisions thereof, nor as exempting such waters from the operation of the laws heretofore or hereafter enacted by Congress for the preservation and protection of navigable waters. The right to alter, amend, or repeal this section is expressly reserved.