*1 her counsel conceded alleged record indicates that that since all the her. She claims the line of such a fine was below of the consent decree occurred violations Illinois, offenses and in case waived she is entitled serious Minnesota right may had to Amendment to a trial Goldstein have the Sixth whatever the offenses jury states and districts where trial.7 allegedly We do not committed. States, agree. 264 U.S. Myers v. United Conclusion 273, 95, 103, 272, 68 L.Ed. 577 S.Ct. Goldstein, judgment respect to With (1924), squarely reject- Supreme Court affirmed; of the District Court is argument district court’s con- ed the that a Fox, penalty is for lack spect to vacated tempt power offenses occur- is limited to trial, jury and the case is remanded for ring of that within the territorial limits opin- proceedings not inconsistent with this acknowledges Myers court. Goldstein ion. overruled, suggests that has not been it has the statement been eroded Illinois, 201, at 88 S.Ct.

Bloom v. 1481, “[cjriminal contempt is a Though ordinary

crime in the sense.” jury right trial to those

Bloom accorded a offenses,

charged contempt with serious do not think intended to

we that decision import panoply the full of Sixth Amend America, UNITED STATES of rights contempt proceedings. ment into Appellant, Young v. See United States ex rel. Vuit v. S.A., 787, 796-97, ton et Fils 481 U.S. BOCCANFUSO, Joseph Appellee. 2124, 2131-32, (1987). A. S.Ct. 95 L.Ed.2d 740 Myers Bloom does not mention or the issue 902, No. Docket 88-6256. stronger of venue. if Even there were Appeals, United States Court of that Myers vitality, evidence has lost its we Second Circuit. only recently been reminded to “fol controls, directly low the case which leav Argued 28, April Supreme] prerogative Court the [the Aug. 9, Decided overruling its own decisions.” Rodri guez Quijos de v. Shearson/American Ex — Inc., U.S.-, 1917, press, 109 S.Ct. (1989).

104 L.Ed.2d 526 See Salerno v. League

American Base of Professional Cir.1970), Clubs, (2d ball 429 F.2d denied, rt. 400 U.S. 91 S.Ct. ce (1971). 27 L.Ed.2d 452

Finally, reject we claim Goldstein’s $5,000 imposed fine on her indi

cated that her pur offense was serious for

poses entitling jury her to a trial. The pet-

7. The imposed classification of Goldstein’s offense as 000 fine on Fox in the exercise of our ty possible argument sentences, raises the authority contempt Fox must to revise criminal offense, guilty petty also be Schnackenberg, of no more than a see Cheff liability vicariously (1966), since its arises based on the S.Ct. 16 L.Ed.2d 629 had we However, agent. conduct of its noted, contempt penalty as we have not concluded that the must trial, contempt the classification of jury a criminal be vacated for lack of a we see noth- penalty imposed, turns on the ing improper imposing upon corporate and in this case con- penalty imposed upon Fox established its temnor a more fine substantial than the one Moreover, offense as imposed agent serious. whether or not on the for whose misconduct the $500,- we would have made some corporation revision in the is liable. *2 Healy, Dept, P. of

Michael Justice Gelin, Schachter, (Jacques Dept, A. B. Scott Justice, Carr, Acting A. of Donald Asst. Gen., Atty. Land & Natural Resources D.C., Div., Washington, Stanley Twardy, A. D.Conn., Jr., Haven, Atty., New Conn., Donovan, Atty., Jeremiah Asst. U.S. Conn., counsel), Saybrook, appel- for Old lant. Koskoff, Fuchs,

Richard A. Koskoff & Bieder, P.C., (Michael Bridgeport, P. Conn. Koskoff, Musto, Bridgeport, Vincent M. Conn., counsel), appellee. for OAKES, Judge,

Before Chief MESKILL, TIMBERS Circuit Judges.

OAKES, Judge: Chief appeal question involves the wheth- estopped er the Government is from assert- against claim landowner a viola- Act, tion of the Clean Water U.S.C. (1982 (“the seq. Supp. 1987) 1251 et & V §§ Act”). landowner, Boccanfuso, Joseph placed fill and constructed a seawall of the United without a sec- waters States permit, tion 404 see id. § (“the Corps”). Army Corps Engineers 1311(a). The See id. United States Dis- Connecticut, trict Court for the District of Gilroy Daly, Judge, although T.F. held Act, fill the seawall and violated asserting from Government was against claim Boccanfuso. United States F.Supp. Boccanfuso, (D.Conn.1988). The district court found of an oral misstate- the combination Corps’ jurisdiction by Corps ment of timely failure official and the process application for a Boccanfuso’s sec- permit amounted to sufficient af- tion 404 misconduct for the firmative estopped. to be We reverse Government remand. pieces proper- three Boccanfuso owns (“Areas ty at and 88 Harbor Road 1,” respectively), abutting # 2 # # Saugatuck Westport, River Connecti- Although cut. at various times all three subject areas have been the of extensive F.Supp. at 695. The dealings canfuso, and Boccanfu- between the Boccanfuso to submit an after-the- so, appeal. directed only Area # 2 is at issue on comply application for Area # 1. To fact description A brief mandate, Boccanfuso hired with the Corps may help explain Boccanfuso’s architect, Campbell, Ed to draft a marine claimed confusion. The asserts necessary drawings application. for the *3 the Clean Water Act. Boccanfuso violated 1982, Campbell February In submitted act, ex- Corps’ jurisdiction Under pre-existing in plans for the structures line,” “high inland to the tide tends planned improvements # 1 and for to Area 328.4(b) (1988), the district C.F.R. § Corps Campbell’s #Area 2. The returned is often referred to as the court noted revision, alia, requesting, plans for inter high potential tide.” A source of “extreme high of the extreme tide line. identification for Boccanfuso is that the Rivers confusion Following the resubmission of Boccanfu- 1899, and Harbors Act of 33 U.S.C. §§ plans public so’s in 1982 and a November gives Corps jurisdiction up seq., et to 1983, February Corps notice in denied line, (average) high the “mean water” Boccanfuso a section because average point by high reached which is the damaging there a less alternative: de- was years, tides over 18.6 see 33 C.F.R. veloping high above the tide line. (1988). 329.12(a)(2) Corps’ jurisdic- Meanwhile, through from June June greater Act is tion under Clean Water 1984, sought Boccanfuso to convince the than its under the Rivers and Corps fill # 1 Area had been construct- Act; testimony Harbors there was that on prior grandfa- ed to 1968 and therefore was property, high tide line Boccanfuso’s then-existing thered under a nationwide higher was about a foot than the mean permit. endeavor, As of this Boccan- line, or, high according water to Boccanfu- fuso met in June 1984 at his home on appeal, so’s on ten to fifteen feet brief Road Harbor with Marita Yoder of the further inland. The structures that Boc- Bolster, Corps Sally representative a canfuso in Area # 2 were of built landward Congressman from the late McKin- Stewart line, high they the mean water so ney’s office. Yoder told Boccanfuso that jurisdic- Clean Act within Water Corps’ jurisdiction extended tion, but not its Act Rivers Harbors high mean water mark and that he could jurisdiction. Boccanfuso’s stance at trial stones) place riprap (large in front of an old that he of was unaware 2, seawall in Area # and Boccanfuso later jurisdic- more extensive Clean Water Act did so. tion. Apparently in the wake of the havoc 1981, during inspection, In a routine Bri- along Saugatuck wreaked shoreline Valiton, Corps inspector, discovered Hurricane in Gloria Boccanfuso asked placed that Boccanfuso had fill below prepare drawings for two new high extreme water mark in Area # 1 and in pro- seawalls Areas #2 and #3. The mending jetties in that area. posed # 2 seawall Area was to be situ- letter dated June or- ated the same area as the one that the dered Boccanfuso to cease and desist rejected although had any high work seaward of the mean wa- would lie a feet few landward. On Febru- ordinary ter line in tidal waters or the ary 1986, Campbell plans submitted the high line in water non-tidal waters or the requesting with a cover letter placing fill material seaward of Corps respond days pro- if within ten high the extreme tide line and in all posed jurisdiction. seawalls came within its waters of the United States and their According letter, Campbell’s pro- adjacent expressly wetlands unless au- posed seawalls were to built above the by Corps Engineers thorized to do so high mean tide line. No formal permit. accompanied plans. form Letter from Joseph respond Robert J. Desista to directly Campbell’s did not writ- (June 16, 1981),quoted Boccanfuso request. Campbell gener- in Boc- ten did receive Corps April The district court found that mailing al Boccanfu- so’s construction of the advising jurisdiction, but the seawalls Areas However, #2 #3 violated the Act. line deter- did not tell which water letter court held the Government was jurisdiction: Act mines Clean Water enforcing from the Act with re- Engineers permit required A gard # 2 misleading to Area because of the beyond high mean water for all work statements Marita Yoder and the navigable waters of the United States timely process ap- failure Boccanfuso’s 10 of the River and Harbor Section * * * plication. The district court found that are Act of 1899. Permits also together these two events constituted af- quired under 404 of the Clean Section firmative misconduct so that involving Water Act for those activities However, estoppel applied. regard discharge dredged or fill material 3,#Area the district court found that the States, in all waters of the United includ- *4 estopped Government was not and ordered navigable not waters of permit Boccanfuso to file an after-the-fact States, rivers, also inland United pay $2,000. holding a fine of That was adjacent lakes and streams and their appealed. wetlands. Letter from Richard Roach to Edward DISCUSSION 4, 1986). Campbell (Apr. appeal, argues On the Government telephoned Boccanfuso testified that he a it should not be asserting from Lindsay, official named Chris who against claims Boccanfuso for violations 10, 1986, April pam- sent on Boccanfuso (1) the Act because: his reliance on an oral phlet highlighted with the statement: “The by Corps misstatement official was not way best to avoid a need for a tois light reasonable of the numerous correct high select a site that is above the tide line representations oral and written that the meeting and avoids At a wetlands.” the Corps made to Campbell Boccanfuso and Westport Planning Zoning Commission (2) jurisdiction; to its con- 17, 1986, April planner on an urban told duct, i.e., Yoder’s statements and the fail- that a official had in- timely process ure Boccanfuso’s section planner Corps’ jurisdic- formed the application, 404 did not amount to affirma- tion under the Act extended to “mean accept tive misconduct. We of these both tide,” which was one foot above the mean arguments. high April water line mentioned 4 principle equitable estoppel general Boccanfuso, mailing. neverthe- applied is not to the Government on the less, # 2 in constructed seawall Area private terms same as it is to citizens. See August 1986. Servs., Community Heckler v. Health 467 thereafter, Valiton, Shortly in- 51, 60, 104 2218, 2224, U.S. S.Ct. 81 L.Ed.2d spector, newly examined Boccanfuso’s con- (1984); Hansen, 42 v. 450 Schweiker U.S. structed #2 seawall Area and advised 788, 785, 1468, 1470, 101 S.Ct. 67 L.Ed.2d appeared that it to within (1981) curiam); Hibi, (per 414 INS v. i.e., jurisdiction, high below the extreme 5, 8, 19, 21, 94 S.Ct. 38 L.Ed.2d 7 September 10, 1986, tide line. On (1973); Merrill, Crop Corp. Federal Ins. v. Campbell, advising wrote him that 1, 2, 332 U.S. 68 S.Ct. 92 L.Ed. 10 Corps' jurisdiction extended to the ex- (1947). estoppel The different standard for high treme tide line and that Boccanfuso springs of the Government from the tenet placed had fill seaward of that line in Area estoppel would frustrate the Govern However, copy #2. of the letter and, ability ment’s to enforce the law and, surprisingly, turn, never sent to Boccanfuso public undermine the interest in full Campbell apparently never mentioned it to Community enforcement of the law. 1986, Servs., 60, him. In November Boccanfuso con- Health 467 U.S. at 104 S.Ct. at structed his seawall in Area # 3. 2224. But, in Area # 2. requires front of an old seawall

Community Health Services noted, misrep- court Yoder’s as the district asserting estoppel private party that a resentation, alone, standing insuffi- demonstrate first against the Government estop cient the Government. estop- elements of “that the traditional Indeed, 698, F.Supp. as the district at 61, present.” at 104 S.Ct. at pel are Id. noted, 699, by oral statements court id. at Thus, party must show that the employees agents are not Government misrepresentation made a Government ones, weight the same as written accorded upon party reasonably relied to which the Servs., at Community Health 467 U.S. its detriment: 2226; at see also Schweiker S.Ct. acted, “If, party] at the time when [the Hansen, 101 S.Ct. truth, knowledge of the party such had (1981) curiam) (per (rejecting L.Ed.2d 685 reason- or had the means which with argument that oral misstatement Social diligence acquire the able he could knowl- estoppel). Security official created edge negligence so that would be court, considering Yoder’s The district ignorant by using to remain misrepresentation in oth- combination with means, he claim to have those cannot events, er found that Boccanfuso’s reliance repre- by relying upon the been misled The other events that the was reasonable. sentation. ...” district court considered were Yoder’s Id. at 59-60 n. 104 S.Ct. at 2223 n. 10 granting permission place riprap, (quoting Pomeroy, Equity Jurispru- 3 J. acquiescence placement of (S. 1941)). Symons dence ed. *5 riprap, timely and the failure to Davis, generally See K. Administrative find, respond application. to the 1986 We (2d 1983) (chapter Law Treatise ch. 20 ed. however, light in of the numerous discussing estoppel, retroactivity, and in- correct written and oral statements that consistency). Corps regarding made to occasionally While this circuit has found Campbell, Boccanfuso and er- both estopped, the Government to be we have ror for the district court to find that Boc- only very done so limited and unusual reasonably canfuso relied on Yoder’s oral circumstances. Corniel-Rodriguez See v. misstatement. INS, 301, (2d Cir.1976) 532 F.2d 307 n. 18 throughout The record here shows that (“Our holding is limited to the extraordi dealings course between the us.”); nary circumstances before Scime v. Boccanfuso, information Bowen, 7, (2d Cir.1987)(holding 822 F.2d Corps’ jurisdiction readily to available estopped Government was not Campbell capacity Boccanfuso and to in his given when erroneous information was to agent. particular as Boccanfuso’s Of rele- agent by Security claimant an of the Social vance the location of the seawall in Area noting Administration and that Comiel- #2, quite which is similar to that of the Rodriguez was limited to its facts Also, rejected in seawall there were 477, Goldberg Weinberger, 546 F.2d 481 many high references to the extreme tide (2d Cir.1976), denied, n. 5 cert. 431 U.S. correspondence line in the that the 937, 2648, (1977)). 97 S.Ct. 53 L.Ed.2d 255 years. sent to Boccanfuso over the A let- Although may conduct have 16, 1981, regarding ter dated June Area exemplary case, than been less we placed # 1 noted that Boccanfuso had fill estoppel hold that there is no in this case high “below the extreme water line” and because Boccanfuso could not have reason stop placing him ordered to fill “seaward of ably misrepre relied on Government high the extreme tide line.” Letter from sentation. Joseph Robert J. Desista to Boccanfuso The district court (June 16, 1981). found that June of subsequent A letter ad- 1984, erroneously Yoder ..., told Boccanfuso Corps’ “jurisdiction partic- dressed the Corps’ jurisdiction that the extended ularly Area # construction ... and [the 1] high to the mean high water line and that Yoder fill ... below the extreme waterline.” gave permission place riprap Joseph in Letter from Richard Roach Boc- 1981). (Nov. 6, Even if did not find When we Boccanfuso’s canfuso unreasonable, reliance make im- claimed we would sought permission to Campbell reject the district court’s determination Corps required # provements Area timely process that the failure drawing identify him to amend Boccanfuso’s amounted to af- already “high plans, line” on the which tide Although firmative misconduct. the dis- line, high mean and his showed the water may correctly trict court found that as “E.H.T.” office added a line annotated Corps’ unresponsiveness “was unwar- application in When the denied that regulatory pro- ranted and a breach of the September of it noted Boccanfuso’s cess,” Boccanfuso, F.Supp. strengthening existing alternative of applying finding. court erred in structure “above H.T.L.” or “above E.T. L.,” ordered him to restore cannot be by removing the structures and the area enforcing ground from the Act on the grading planting “the area from it failed to follow deadlines established Letter from E.H.T. to M.L.W. lines.” Carl by regulations. its own The district court (Sept. Sciple Joseph B. A. Boccanfuso overlooked the distinction between statuto 1983). letter, acknowledged A 1984 rily mandated imposed deadlines those # 1 stay, the structure in Area could agency’s regulations. own Federal to file an after-the-fact agencies invited Boccanfuso jurisdiction by do not lose their permit application jetties and noted comply statutory for two failure to time limits plans congres should “mean unless the statute show low wa- demonstrates (0.0'), (7.0'), occur, high and the sional intent that this result ter mean water Brock v. (8.4').” 253, 266, 106 high County, line from Pierce tide Letter Richard S.Ct. (1986), 90 L.Ed.2d 248 Joseph (July and the Roach to Boccanfuso 1984). Thus, Boccanfuso, subsequent agen Court is reluctant to void act- cy agency action behalf, when has failed to had or should have had on his procedural requirement observe a im knowledge Corps’ jurisdiction portant public rights are at stake and less prior the Act from communications and *6 available, drastic remedies are id. at dealings if Corps, with the even 106 at 1839. S.Ct. something conduct 1986 left to be de- sired. Here, requirement timely process ing applications by is not Although argues Boccanfuso that Yo- congressionally mandated. Boccanfuso ar granting permission place- der’s for the gues violated several of its riprap in ment of front of an old seawall in deadlines, 325.2(a)(1) 33 C.F.R. own see § # 2 in Area 1984 led him further down the (Corps request shall more information from reliance, path of reasonable this claim is 325.2(d)(3) applicant days), within 15 id. § unavailing. already rejected We have his (time process), limits for evaluation id. claim of reasonable reliance on the mis- 320.1(a)(4)(“timely thought decision” es § jurisdiction. statement It would also sential), statutory no but he cites basis have for Boccanfuso to been unreasonable agen these deadlines. This violation of an presume permission lay cy-imposed regulation does not bar the en riprap jurisdiction. The was waiver of the Act. forcement See Bersani v. De Corps’ regulations permit the maintenance land, F.Supp. (D.Mass. 640 718-19 “currently serviceable structures” with- 1986) limit, (although regulation had time permit. 404 out a section 33 C.F.R. “[n]othing legis in either the statute or the 323.4(a)(2) (1988). That Boccanfuso re- history suggests Congress lative even specific, permission ceived written intended to elevate timeliness over the ob riprap, for the installation of the see jectives consequent of the Act bar to Joseph letter from Richard Roach to Boc- enforcement.”). 11, 1984), (July canfuso makes it clear that Further, regulatory juris- remedy did not disclaim a less than build- drastic diction. the wall was available to Boccanfuso. 672 opinion. F.Supp. Procedure Act well-reasoned

Under the Administrative (1982 (D.Conn.1988). (“APA”), seq. majority’s From the refus- 701 et & U.S.C. §§ 1986), so, Supp. respectfully Boccanfuso could have to do dissent. IV al brought an action the district court for

judicial timely of the failure review I. process permit applica- his section argues, tion. As the Government Boccan- careful, findings In view of the detailed permitted fuso should be circumvent by Judge Daly must of fact and since we the APA and then raise the defense of findings clearly determine his are whether estoppel. erroneous, I believe that this case deserves comprehensive more of the statement sum, because Boccanfuso could not than the statement found in facts skeleton reasonably relied on Government majority opinion. misrepresentation jurisdiction, as to we hold that the Government was not Appellee Joseph Boccanfuso owns three 2, reverse, as to # remand Area adjoining 84 and 88 Harbor lots— proceedings district court for further abutting Saugatuck River in Road— opinion. accordance with this Westport, Connecticut. He has resided at twenty Harbor Road for more than Reversed and remanded. years 1968 or earlier. His mother —since and brother live homes located on the TIMBERS, Judge, Senior Circuit other two lots. dissenting: 24, 1968, May In an dated question presented by The essential appellee requested to issue a whether, appeal undisput- view of the permit to allow to build a seawall that repeated ed record of bureaucratic bun- patio along included a and dock the shore- gling government on the (fill line in front of 88 Harbor Road area led a landowner to believe that his seawall 1). proposed number located, seawall and dock properly will high would extend to seaward the mean permitted to order the demolition of the (MHW). line As water such it was within seawall which the landowner constructed at regulatory jurisdiction under the expense enormous to retard the erosion of (RHA), Rivers and Harbors Act of 1899 property undermining and the (1982 seq. Supp. U.S.C. 401 et & adjacent V public road. The §§ district court 1987).1 July Corps grant- On question say answered “No”. I “No”. ed applied for which he majority says “Yes”. Hence this dis- (1968 permit) RHA to construct the sent. sea- *7 wall, patio Appellee and completed dock. regret I that I am unable to concur in the prior the seawall sometime to December opinion. majority I am unable to do so I Judge Daly because believe that correctly held, trial, after a bench Despite seawall, that on the facts the construction of the of this the Army Corps case conduct of the problems severe erosion along continued Engineers (Corps government) was so the beach in front of the seawall. In an seriously misleading and deficient problem, that it effort to correct this in the mid- estop was sufficient both to ordinary an appellee 1970s constructed two stone litigant and to constitute the groins jutting affirmative out from each end of the necessary estop misconduct to govern- the Although permit seawall. under the below, ment. For the reasons set forth required RHA was to construct these Judge Daly’s excellent, would affirm on groins, appellee did not one. obtain high represent 1987); 322.2(a) (1988). 1. The mean Supp. water line is the line V 33 C.F.R. § As average height by high the preceding below, reached tide over jurisdiction Corps' stated the has since years. the 18.6 The river and bank to expanded been to landward of MHW under the Corps’jurisdic seaward of MHW are within the tion under the RHA. 33 Clean Water Act. (1982 § U.S.C. 403 & jurisdiction At about this the time lee either to groins remove the or to apply Corps was extended to landward MHW for an permit after-the-fact groins for the a result of amendments the as Clean as well as for other deviations from the Act, (1982 seq. Water U.S.C. et & § provisions of the 1968 RHA permit in the 1987) (CWA). Supp. expansion V seawall and dock. jurisdiction, as summarized in a series The Corps rejected appellee’s appli- first complex regulations, and obscure extended cation for an permit after-the-fact because Corps’ jurisdiction the to landward of it was insufficiently Appellee detailed.6 MHW to a line alternately known as the then Campbell, hired Ed high line, architect, a marine tide high the extreme tide line or prepare high extreme and the water mark. I submit the application. shall refer On by to this acronym line February 10, 1982, for its most Campbell submitted an description (HTL).2 appellee’s common At application, including drawings, for an af- lots, HTL is vertically about one foot above permit ter-the-fact to retain groins represents MHW. This a distance of about alleged deviations the seawall from along feet slope of the beach in the 1968 permit. RHA Campbell, appel- front of the lots.3 direction, lee’s also included in applica- Appellee’s Corps difficulties with the be- request tion a permit for a to extend the gan in June 1981. At that Corps time a existing seawall in front of lot 88 so that it employee inspecting Saugatuck River would along appellee’s extend lot at 84 shoreline noticed appellee repairing im- (fill Harbor Road 2). area number proving groins in front of the seawall. A later, month Corps returned Camp- opinion In the seawall, drawings bell’s as insufficient. request- It groins dock were in violation of CWA among ed things other Campbell indi- permit requirements provisions and the cate HTL on them. The did not the 1968 RHA appellee. issued to It why state it wanted HTL appellee sent indicated cease and desist order di- drawings. recting Campbell him stop complied all work on the and sent the seawall groins.4 drawings In a follow-up letter dated back to the in November August 1981,5 Corps directed appel- apparently recog- did by 2. HTL is the greatest high line reached 4. Of all by the communications sent preceding year, in the excluding high tide caused tides agents or his between June 1981 and by surges. unusual events such as storm September this is the one which 328.3(d) (1988). Compare 33 C.F.R. clearly Corps’ jurisdiction stated that the MHW, average height which is the reached the CWA extended "landward to the extreme high previous during all tides years. 18.6 high others, tide point line". The as we out Obviously, the two are not the same: the aver- below, all confusing contained obscure and ref- age point high reached a series of tides Corps' erences to the CWA always highest will be less than tide record- contributed to belief that both HTL Nevertheless, stated, ed. "when the term as the district court and MHW referred to the line. same ‘high loosely tide line’ is used to Corps’ jurisdictional person delimit limit a 5. This sets oblique letter forth at best an refer- may easily untrained area the law Corps’ jurisdiction ence to extending as F.Supp. confused.” 695 at 695. As be- stated that, low, landward to HTL. It persons architects, stated if even such marine wanted to retain ramp fill for an employees local officials and access often confuse HTL extended MHW. below HTL and built to aid repairing groins, he would to obtain *8 Following expansion Corps’jurisdic- 3. the of the permit. after-the-fact CWA, Corps tion to HTL under Nationwide Permit to the the a issued bring projects all built communicating 6. In rejection the letter of prior below HTL to December 1968 into appellee’s application, Corps ap- the referred to compliance permit with the CWA pellee’s placement of fill below HTL. This let- quirements. (1988). C.F.R. 330.3 Since ter—as the with other communications in the seawall fill completed area number 1 was the explains instant case—neither what HTL is prior to December by it was covered the why important. nor it however, groins, Nationwide Permit. The were by permit they not covered this since were com- pleted in the mid-1970s. appel- the to seawall During visit Yoder’s request the significance nize the extending seawall the about asked her lee that that at later testified time. He at the the to alleviate number along fill area “a merely was request thought the time he destroying was flooding and erosion which MHW both thing”, that housekeeping appellee that told Yoder beach there. the thing.7 the same to referred and HTL to land extended Corps’ jurisdiction the ap- Corps denied the September also told She far as MHW.10 only as ward its en- application permit latest pellee’s sea riprap a could construct that he him the remove to ordered tirety. It long as it as number in fill area wall seawall extend- part of the and that groins In a fol of MHW. landward remained Corps issued The HTL. ing below 11,1984, the July dated low-up letter ap- never had that it ground the order sea the could retain that stated sur- HTL. Not filling below any proved him to 1 and asked fill number area wall by the dismayed appellee was prisingly, any draw HTL in MHW and both include an order, been issued he had since removal applica permit after-the-fact ings for the He seawall.8 the to construct permit RHA groins. for the two requested it had tion appeal that attorney to an retained explain the not Corps did again the Once pertaining section order the removal appellee in request of its significance HTL. below extended seawall which of the impor drawings. Most HTL clude however, the purposes, for our tant passed between then A letters series construct the appellee could confirmed that Appel- attorney. appellee’s Corps and the the state with riprap consistent seawall exception of the that, with lee claimed during her visit. by Yoder made ments area number in fill groins, the seawall Corps. The in fill by riprap seawall Appellee authorized built had been ap- Eventually, MHW. just claim. landward disputed this number area of HTL the office it to seaward naturally placed aid of enlisted the pellee This The McKinney. Corps’ jurisdiction. Congressman Stewart thus within late however, for meet- to discover this arranged a failed Corps, office Congressman's The Yoder, Hurri- official, year a later Marita More than a violation. between damaged appel- heavily a visit struck and included cane Gloria appellee which riprap This seawall. seawall. the area behind view property to lee’s needed During that he appellee to decide 1984. in June caused meeting place took num- in fill area Yoder substantial seawall convinced more meeting appellee prepare Campbell to He retained Corps permits. 2. ber covered the seawall along seawall/patio drawings second appellee to submit for Moreover, Yoder invited sea- a third and for fill area number after-the-fact a new (fill Road Harbor front of 80 wall/patio in groins.9 the two Sep- opinion in architect, filed its court time the district Although marine professional yet acted. Corps’ jurisdiction had tember believed only to extended CWA both RHA MHW, "high tide terms and that appellee’s disputed seaward line” 10. At trial ways merely alternative and "HTL” Corps’ juris told that Yoder claim MHW, refer- referring than terms rather of ring far as extended to landward diction concept. mis- entirely This different an Corps and moved to left the Yoder had MHW. quite conception common. testify at either in trial Japan. did not She ab deposition. In view person why Corps believed that is unclear 8. It Yoder, testimony by confusion sence of despite RHA the 1968 was unauthorized seawall concerning Corps’jurisdiction and Permit. CWA the Nationwide permit, as well as it, observed court trial as the demeanor at bun- explanation is bureaucratic obvious events. appellee’s version of accepted throughout this case. court found gling, which is erroneous, clearly finding only is not applica- such Appellee promptly submitted illustrating precisely the me as strikes tion, Corps promptly lost—consistent judges and which we entrust to district function bungling record its administrative *9 appeal. lightly on not be disturbed should sec- Appellee submitted a throughout this case. which, upon the as of application ond 3). Campbell prepared draw- passed during area number Several months which ings running just for two new Campbell nothing heard from the Corps. along fill areas numbered 2 above MHW He telephoned therefore to find out the completing drawings, and 3. After the February request. status He was Beilis, Campbell telephoned Caroline only told Corps “get that would back official, Corps pro- and asked whether April to” him.12 appellee telephoned On posed Corps’ seawalls would be within Corps to find out the status of his jurisdiction. Campbell testified at trial request. Corps’ The official with whom long that Beilis told him that as as the appellee spoke Corps’ told MHW, appellee seawalls were built above jurisdiction By extended to HTL. this time permit. government did not need a The did appellee Campbell come to be- —like —had dispute this conversation. lieve that HTL and MHW were one and the Campbell copy then sent a of the draw- same. Corps appellee pamphlet The sent ings proposed seawalls/patios of the to Bei- highlighted language best “[t]he covering February lis under a letter dated way permit to avoid a need for a is to select that, asking her to confirm since high a site that is above the tide line.” The proposed construction be to land- would significance language escaped of this ap- MHW, permit ward of no would be pellee, believing as he did that HTL and quired. requested response He within 10 MHW were the same. days. Corps Camp- failed to answer time, At widespread about this confu- letter, though bell’s even its officials later sion Corps’ jurisdiction over the was fur- they admitted that treated the letter as a ther demonstrated statements of several permit application. They also admitted Westport town officials who were called Corps regulations required upon approve seawalls. Corps request any additional information These officials had Corps dealt with the process application needed to an within 15 before and days receipt believed —like applica- to rule on the Campbell days receipt. Corps’ jurisdiction tion within 60 C.F.B. ex- —that 325.2(a)(1); 325.2(d)(3) (1988).11 only tended They seaward of MHW.13 §§ government argues appeal description now Corps’ in the same letter of the RHA Campbell's application jurisdiction: letter was not an Corps permit required because "A ... permit application it did not contain a form and beyond high navigable all work mean water in did not contain the information that Why Corps waters of the United States.” submitted in his 1982 for a jurisdiction would make its RHA clear but make build a seawall in fill area number 2. The jurisdiction confusing its CWA is one of the correctly rejected silly argu- district court many bungling part instances of conduct on the trial, F.Supp. finding ment after n. of the in this case. Campbell’s that permit application. Again, treated letter as a finding is not 13.The claims that the town offi- clearly erroneous. confused, pointing cials were not to the follow- ing entry Westport in the minutes of the Plan- time, Campbell 12. About this received a letter ning Zoning Commission: jurisdiction. concerning It [apparently appears "Mrs. Donahue a Commission general mailing to have been of a [Corps] says they Although said the have no member] to marine architects. jurisdiction. explicit description letter contained Mr. Minor Commission offi- [a RHA, they giving Corps’ jurisdiction under said are the limits of their cial] it contained only jurisdiction. general vague explanation telephoned Corps’ He [a offi- cial], jurisdiction nothing jurisdiction CWA who said the that did is mean [sic], up Campbell something clear the confusion that had con- tide which is different than cerning Corps’ jurisdiction. says, The letter de- what the letter as mean tide is one [sic] jurisdiction scribed the high CWA as extend- foot above mean [sic]." involving discharge present meeting. to "activities at this It is dredged suggested put or fill material in all waters of the that this should have him as well States, including only navigable appellee straight concerning Corps’ juris- United wa- States, rivers, things entry ters of the United but also inland diction. The suggests two that this me, however, adjacent (1) easy lakes and streams and their wetlands.” are how it is description "high did not state where the to confuse the various terms such as tide compare (HTL) (MHW), high ended. And this with the line” and “mean water line” *10 676 2 unau- fill area number from ap- remove subject appellee’s

approved of HTL.14 fill seaward thorized per- obtaining any needed pellee’s appellee build mits, required that they 2 over the fill area number

the seawall II. they were because riprap seawall top of holding majority’s Turning first to the digging of effect the about what concerned finding that district court erred that the have on erosion. footings would estoppel are elements the traditional nothing 1986, having heard August In colleagues’ disagree my I with present, he Corps, appellee assumed more from finding appellee’s appellate that contrary the sea- permit and constructed no needed and ac- Corps’ statements reliance on the days, 2. Within in fill area number wall unreasonable. tions was demonstrating a Corps suddenly — party held that a Supreme Court has The lacking an of- previously promptness —sent estoppel attempting to claim benefit property to inform appellee’s ficial to adversary’s it relied on its must show that prob- in fill area number the seawall changed extent that conduct to such an of the ably in violation worse, the “reliance position its it had been built requirements because par- in that the must have been reasonable permit. The HTL without a seaward estoppel not know nor claiming the did ty not the appellee that HTL was official told adversary’s it have known that should same as MHW. misleading.” v. Com Heckler conduct was Services, Inc., 467 U.S. munity Health chapter in this the final not (1984) (citing Nat’l Bank v. Wilber saga. September sorry On 120, 124-25(1935)). States, 294 U.S. United stating Campbell Corps sent a letter to majority’s asser- part company in violation of the appellee’s seawall was reasonably appellee could tion permit requirements because “[the and actions relied on the statements filling extended Corps’] jurisdiction over First, district court’s Corps. The sent never landward [HTL]”. finding reliance is one of reasonable appellee Camp- copy of this letter to finding under must review this fact. We re- appellee told that he had bell never and not sub- clearly erroneous standard that he decid- ceived it. testified in- finding novo review ject the to the de appellee letter not to inform about the ed 52(a); dulged by majority. Fed.R.Civ.P. MHW he still believed that because (2 Bowen, F.2d 680 Cir. v. Nash and, thing; HTL the same since Prods., 1989); Bldg. Bond Krieger Gold MHW, above there was no seawall was Cir.1988). Second, (2 863 F.2d no need to tell about problem and finding court’s the district appellee, the letter. November Corps’ statements and ac reliance on the nothing further having heard clearly erro reasonable was not tions was placement of the Corps about the seawall neous. in fill area number assumed proper starting point The correct is the in violation of the placement was finding by the standard review Accordingly, Corps’ permit requirements. reasonably re- district court that in fill num- completed the seawall area he and actions. lied on the statements ber applying a de novo majority erred Corps commenced the instant en- review, analysis of since an standard of later, seeking forcement action a short time question to be determined —reasonable requiring appellee, among question other an order liance—makes clear that Supreme stated fact. As the Court things, to demolish the seawalls and to one of sought by govern- (2) project 14. Other claims for relief that no one concerned with this just Corps’juris- respect numbered 1 and what the ment with to fill areas seems to have known subject appeal. of this was. 3 are not the diction *11 Heckler, in reliance is reasonable when of by detrimental reliance members of claiming estoppel “the party the did not class best suited to factfinding on an indi- court). nor vidual basis Here, know should it have known that its the district majority the adversary’s misleading.” applying conduct was erred 467 a de novo standard of review to the district court’s finding appellee reasonably relied on question appellee While the of what Corps’ the statements and actions. question fact, clearly ques- knew is a of the Applying review, of standard tion am appellee of what should have known satisfied that the district court’s finding question also of fact. example, is For appellee reasonably relied on the appellee what should have known is inti- Corps’ statements and actions was not related to the mately means he had to clearly Indeed, erroneous. even under de knowledge. obtain such at 59-60 & n. Id. review, novo the finding district court’s of (quoting Pomeroy, Equity 3 Jurispru- reasonable reliance should be affirmed. (Symons 1941) dence at 219 ed. The district court finding based its on a (“ ‘If, acted, at the time when party he such combination of following: the Yoder’s knowledge truth, had or had the statements of the Corps’ jurisdiction and means which with diligence reasonable placement seawall; of the riprap Corps’ the acquire he could knowledge....’”) the appellee silence when placed riprap the sea- (emphasis added)). Even if the determina- HTL, below Campbell wall when in Febru- tion appellee of the means available to ary 1986 filed drawings the proposed Corps’jurisdiction the finding ascertain is a seawalls in fill areas numbered 2 and fact, of a subsidiary finding the of what and when appellee both tried appellee should have also is a known find- learn whether the would exercise (derived of ultimate fact in considerable jurisdiction proposed over the seawalls; part finding subsidiary of this complicated the regulatory scheme fact). finding Such still is reviewed under jurisdiction which left unclear and made it clearly the erroneous standard. Pullman- appellee difficult for independently to de- Swint, Standard v. Corps’ jurisdiction. termine the (1982) (“[Rule 52(a)] does not divide facts categories; into in particular, however, The majority, it does not accepted has findings government's divide of fact those claim appellee’s into that deal reliance with ‘ultimate’ the Corps’ and those on that deal with statements and actions was ‘subsidiary’ facts.”). Thus, reasonable, both determination because the peatedly of subsidiary writing referred in fact of to HTL the means avail- as the jurisdiction appellee able to limit appellee and because Corps’ ascertain the jurisdiction, had means to learn the as well as the extent of determination of Corps’ jurisdiction. the ultimate fact of appellee what should known, clearly findings are of fact. As set forth above Part I of this dissent, perusal correspondence analysis This same applies to the ulti- between the appellee Camp- or finding mate as to whether reason- HTL; bell shows several yet references to ably on the relied statements and actions of merely all but one refer to HTL in one the Corps. Clearly, finding of what relating manner the other without appellee knew or should have known are Corps’ jurisdiction. The one letter in findings subsidiary facts. It follows Corps clearly jur- stated that its that the determination of whether or not isdiction extended landward to HTL was appellee reasonably Corps’ relied more than 4 years written before statements and actions finding ulti- sought to build the fill areas mate findings fact derived from the of sub- numbered and 3. Id.; facts. sidiary see also National Trea- sury Employees Reagan, Union majority, government, like also (D.C.Cir.1981)(determination F.2d points to two conversations in which it confirmed follow-up letter which jurisdiction was

claims placing of the on the these conversa- statements The first of Yoder’s clear. made appel- April seawall, light 1986 when place riprap took tions determine the Corps to telephoned year after lee than a for more silence inquiry as to whether it status of within built riprap seawall was over planned to exercise reasonable- Corps’ jurisdiction. is said that Although it seawalls. proposed also is reflected reliance ness *12 appellee that Corps official told a six Corps over the failure of the in the HTL, by to jurisdiction extended to following February 1986 period month appellee so thor- Corps had time the this by Campbell repeated inquiries answer thought he that HTL oughly confused that exer- to whether it would appellee as and same; and the this were one and MHW proposed concrete over the cise appellee. help to of little conversation was 2 and in fill areas numbered mystifying is the The second conversation appel- is a case which Finally, this not meeting of exchange at the that occurred through dil- reasonable had the means lee Zoning Planning Commis- Westport jur- independently to determine igence 13, supra; but this set forth in note sion Corps. As the district court the con- isdiction widespread was merely shows how Indeed, found, jurisdiction was Corps’ jurisdiction. CWA over the fusion earlier, vague repeated “obscure”, conceptual “subject it was the to confu- no doubt Corps’ jur- confusing to the references easy “not to discern”. sion” and rely to appellee on isdiction that caused Indeed, large number F.Supp. at 694-95. during her and actions Yoder’s statements Corps employ- people including several of — appellee’s to lots. visit Campbell— architect and the marine ees the extent were confused about importance particular is Yoder’s visit of people finding If these Corps’ jurisdiction. court’s evaluating the district to is Corps’ jurisdiction, She went it reasonable reliance. confused as to up major misunder- property to clear appellee man who surprising that not —a appellee. standing Corps’ and between the was repair business—likewise runs an auto appellee certainly It was reasonable confused. the limits of assume that she knew short, applies clearly In one whether authorized Corps’ jurisdiction and was review, or de standard erroneous novo Yet, that she made. make the statements finding district court’s that placement proper when asked about the reasonably relied on the statements 2, she errone- in fill area number a seawall eminently me as action of the strikes Corps’ jurisdiction ously stated that majority’s appellate just. sensible only as far as extended landward MHW. finding contrary could have been by appellee approved map drawn She also blinding only by itself to the stark reached permitted he was depicting what she stated facts of record. riprap sea- he constructed the to do when according built wall—and when Appellee HTL. plan extended below III. seawall in fill area number 2 later built the majority’s riprap brings me to the alterna- top seawall. When

over done, holding is said and it is certain what statements and all tive that the phys- truly was where cared about of affirma- rise the level actions do not ended, ically Corps’ jurisdiction rather estop the necessary to tive misconduct In hind- was called. than what line recognize that it has been government. Yoder’s state- sight, appellee’s reliance on mis- government’s affirmative held that the delineating misguided, ments line was misleading if seriously must be conduct surely it unreasonable. estopped. The may it egregious before surely here government’s misconduct Appellee's on Yoder's state- reliance mildly. put it light seriously misleading, in the ments also was reasonable There nothing is forecloses our Hicks Harris, 606 F.2d 68-69 holding (5 Court from Cir.1979). First, estopped. is no there absolute bar to short, it is clear that the Corps may be estopping government. Although estopped circuit if it is established Supreme Court has never that it engaged has in affirmative miscon- government, it has stated that never duct. finding The cases affirmative mis- would not do so if confronted with affirma- conduct tend to have been decided on their tive E.g., Miranda, misconduct. INS v. individual facts and provide therefore little (1982) curiam); (per guidance precise nature affirma- Hansen, Schweiker v. 450 U.S. 788-89 tive required. misconduct Significantly, (1981) curiam); (per Hibi, INS v. 414 U.S. however, there is an absence in this case of (1973)(per curiam); Montana v. Ken- several of the policy considerations that nedy, (1961). 314-15 have influenced some require par- courts to Second, while lower court decisions hold- ticularly egregious misconduct *13 government that the estopped is are government finding before a of affirmative rare, they are not Judge unknown. New- misconduct can be made. man has observed that “no fewer than First, one of the reasons for Supreme eight circuits, including one, have stat- Court’s refusal estop government ed that there are some circumstances has been its concern only Congress which the Government will be estopped.” power has the to set the governing rules Harris, 942, Hansen v. 619 F.2d 959 granting government of benefits, which (2 Cir.1980) (Newman, J., (col- concurring) effect access to public trea cases), lecting rev’d sub nom. Schweiker v. sury. “The Court has recognized ... ‘the Hansen, (1981) 450 (per curiam); U.S. 785 duty of all courts to observe the conditions see also Watkins v. United Army, States by Congress defined for charging pub 699, (9 F.2d 11 (en 875 707 n. Cir.1989) lic treasury’ Schweiker, ”. supra, 450 U.S. banc). (quoting at 788 Federal Crop Corp. Ins. v. Third, there is no bar in this circuit Merrill, 380, (1947)). 385 In the against estopping government. We case, however, instant ap- whether government held estopped to be at least pellee is permitted to retain his seawall INS, once. Corniel-Rodriguez v. 532 F.2d has no public effect on the fisc. The Sev (2 Cir.1976).15 Although that case was enth Circuit has stated that the absence of facts, limited to its id. 307 n. it concern access treasury over to the dimin illustrates the any outright absence of pro ishes the prohibition force of the against against estopping government hibition estopping government. Portmann v. in this circuit if the government guilty is States, United (7 674 F.2d 1163 Cir. affirmative misconduct. Comiel-Rodri- 1982). Indeed, although Supreme guez involved the exercise of the —which Court has estop government declined to government’s immigration authority —also cases, in non-benefit appears at least to implicitly rejected the view of some circuits implicitly recognized might that it be government that the may estopped be if it estop government easier to in a non- engaged has in a proprietary activity, but benefit case than in involving a case access if engaged never it has in the exercise public Schweiker, funds. supra, 450 sovereign powers. its E.g., Deltona Corp. U.S. at 789 n. 4. Alexander, v. (11 682 F.2d 891-92 Cir.1982)(government may non-benefit estopped estoppel be cases decided in Army Corps Engineers permit pro Supreme Court all immigra- involved ceedings proceedings because such tion consti proceedings. naturalization tute exercise sovereign powers); is an area of the law in Supreme which the government 15. Also we held that the Harris, be should supra. in Hansen v. regulations government as here the special where owe courts held that the Court has party must complex and a are question govern- other branches to the deference its interpretation of agency’s rely on the 67, 81 Diaz, 426 U.S. v. ment. Mathews Portmann, confusing regulations. own 522, 531 Press, (1976); v. Galvan 1163; Pac. F.2d at supra, 674 California (“But formulation (1954) that the [immi- Admin., 557 F.2d Bus. v. Small Bank exclusively to is entrusted gration] policies expressed in (9 Cir.1977). policies firmly im- as about Congress has become par- applying strike me these cases judicial tis- legislative in the bedded Judge As instant case. force to the ticular aspect of body politic as our sues of observed, involving naviga- law Daly “[t]he spe- sort of The same government.”). our confus- complicated and ... ble waters Congress decisions of cial deference dealing with the ing”, people and the pub- involving access in cases found in inter- rely guidance naturally quite immigration found also is lic fisc F.Supp. at regulations. preting in- case The instant cases. naturalization unique areas of the these neither of volves hold foregoing, would In view of the law.16 and actions con- Corps’ statements Second, has held that Circuit the Ninth neces- misconduct the affirmative stitute may appropri- estopping the one estop government. When sary to public interest if little or no harm to ate showing of affirmative applies the lesser Lazy FC result. United States will required here to misconduct Cir.1973).17 (9 Ranch, 481 F.2d actions, estoppel of the statements *14 public damage to the instant case no the The especially appropriate. government is per- appellee if result interest would egregious significantly more case is instant in fill area the seawall mitted to retain governmental es- run of the mill than the infini- involves an number 2. The wall in a victim of a bureau- toppel case which Saugatuck the River portion of tesimal government to tries to hold the cratic error The area around shoreline. errant by made an single misstatement extensively developed already is property Rather, the instant government employee. sizable sea- appears to have several and repeated bureaucratic bun- involves case large corporate facili- protect to walls built in the district why my That is view gling. simply has failed to government The ties. Corps’ mis- the properly considered court if appreciable harm will result what show arriving at its aggregate conduct permitted to retain his seawall. appellee is estop the eminently correct decision to government. estopping Third, prohibition against is when the government undercut here, among things, the other We have meaning misrepresents the government by a of a misstatement classic element regulations. I rec- complex confusing and regarding a vital government employee has ognize Supreme Court stated The is much more. agency rule. But there by party’s estoppel rarely justified is rule with which we are concerned critical by agency’s concept easily misled an jurisdictional claim that it was con- involved a law, every- misinterpretation concepts. since similar The fused with other E.g., murky the law. and presumed to know was set forth a series one rule Merrill, 63; simply was Heckler, regulations. There supra, perplexing Nevertheless, appellee could person at 384. or office to which supra, 332 U.S. no straightforward simple, Ninth turn to obtain a both the Seventh and Circuits Appellee’s HTL. confusion stated, adage explanation its force loses much of requires showing Corniel-Rodriguez, now supra, 17. The Ninth Circuit also involved Nevertheless, damage public immigration we matter. no to the there will be government We have shown a government. in that case. estop it will interest before willingness estop even in an Watkins, supra, 875 F.2d at traditionally deference has been area in which policies by Congress. accorded to set receipt was exacerbated his applicant’s of a letter immigration ground on the Corps shortly after Yoder’s visit that it unjust would be to enforce the stat appeared to confirm the apparent ute since Department the State had violat correctness of her regulation statement to him. ed a with the prom force of law Moreover, appellee when ulgated acted in prevent accord- the immigrant from un ance with misstatement wittingly Yoder’s built violating and the statute. Corniel riprap HTL, Corps seawall below -Rodriguez, supra, (fail 532 F.2d at 306-07 nothing did for year. more than a comply ure to with “affirmatively required procedure” designed protect applicant and statements actions summarized misconduct). severe affirmative above, however, did not constitute whole of the case, misconduct. After In the instant was misled Campbell prepared drawings his thinking for into jurisdiction had no proposed in fill areas numbered over proposed his seawall in part because he sent them and asked the Corps respond failed to inquiry that it inform within days ten timely whether manner in accordance with its the seawalls were Corps’ juris- within the regulations which also have the force of diction. only ignored True, law. regulations in the instant request; it failed to inform case have other (e.g. aims efficient of its management) more than six contrasted with the aim sole months, though Campbell even appel- regulation in Corniel-Rodriguez of lee repeatedly up followed in- protecting initial applicant. Granted that quiry. Significantly, this failure occurred Comiel-Rodriguez does not control the in despite the fact case,18 treated the stant it seems to me that the instant inquiry permit application as a case is no weaker compelling or less than bound its own regulations request Corniel-Rodriguez. Corniel-Rodriguez required additional information single within involved a incident of administrative days fifteen receiving inquiry after and failure. The instant repeated case involves to render a decision on with- blundering. serious bureaucratic sixty days. 325.2(a)(1), 33 C.F.R. §§ The Corps’ violation of a regulation with 325.2(d)(3)(1988). quick A perusal by the *15 the force distinguishes of law also this case Corps of drawings the submitted with the Hansen, from Schweiker v. supra. In inquiry would pro- have disclosed that the Hansen, held that we the Social Security posed seawalls were to extend below HTL. (SSA) estopped Administration was from If the simply obeyed had its own enforcing regulations requir- statutes regulations, this entire fiasco could have ing applicant an for benefits to file a writ- been avoided. application. ten applicant The had failed to Corps’

The failure to obey regu- its own application file an after she had been incor- lations and the resultant harm to appellee rectly eligible advised that she was not for particularly is significant light in of Cor- certain benefits. When she later learned niel-Rodriguez, supra. key The the eligible benefits, that she for the was she estoppel Court’s in that case was find- the filed an application to receive the benefits government pro- had failed original effective from the date of her in- applicant vide an immigrant’s for an quiry. visa SSA denied her application The warning required with a Depart- State past the ground benefits on the that she regulations. ment As a result of fail- application that had not filed written at the ure, applicant the committed an act which original inquiry. time of the held We that eligibility eliminated her for the The estopped visa. the SSA applying was from the regulation promulgated had been to protect written application ground rule on the that immigrant the precisely from such fate. the employee SSA who originally had in- We government held that the applicant should be formed the eligi- that she not was estopped from enforcing barring a statute ble for benefits had violated an SSA man- Corniel-Rodriguez also was limited to its facts. Id. n. at 307 18. IV. that she to recommend requiring ual thought she To if he summarize: even application file Hansen, su- eligible for benefits. novo dea applying in erred majority The 947-49, rev’d, 450 U.S. pra, F.2d at standard clearly erroneous the than rather (1981). finding that court’s the district review Corps’ on the relied reasonably reversing, Supreme the Court held sea- placing and actions statements it misconduct that was affirmative majority number area in fill wall ignore employee to the man- for the SSA holding that erred further that he that ual’s recommend instruction on the Finally, not reasonable. liance applicant file a even written con- conduct case, the this facts thought eligible for bene- if he she was not neces- misconduct affirmative stituted manual had fits. stated that the The Court government. estop the sary to legal no force and did not bind SSA. warrant does not Indeed, record if this Schweiker, supra, at 789-90. that Daly’s decision Judge sustaining distinguishes in- Schweiker This demolishing from be government regulations case which stant because the the word seawall, then landowner’s this Corps permit require timely processing of no circuit go out should applications do have force law. The will circumstances Hansen distinguishable case also from honest more would estopped. to be in- the affirmative misconduct in effect saying than forthright incorrect stant case involved more than see we when estoppel know an will “we verbal advice.

one”.19 above, I am satis the dis- stated reasons judgment For the affirm I would affirma guilty Corps is From opinion. Daly’s fied that Judge court trict estop the necessary to so, respectful- misconduct tive to do refusal majority’s in gave employee A government. dissent. emphatically ly upon relied who appellee, advice to correct up Corps followed detriment. to his confirming let awith advice incorrect in ac riprap seawall Appellee built ter. within advice cordance INCORPORATED, HOAR, E. THOMAS year than more For jurisdiction. Plaintiff-Appellant, Cross-Appellee, then sent Appellee nothing. Corps did proposed Corps for two drawings to pro clearly showed al., CORPORATION, et LEE SARA jur within posed seawalls Defendants-Appellees, *16 whether He asked isdiction. Cross-Appellants. jurisdiction. were within 1070, 808, Dockets Nos. as subse inquiry as well Corps ignored 88-7962, 88-9010. communications, even follow-up quent toit required regulations its own though Appeals, United States Court In view response. prompt give Second Circuit. mis affirmative showing of the lesser April 1989. Argued the facts required conduct judgment Aug. Decided case, affirm I would instant do so would court of the district well-reasoned careful, comprehensive, F.Supp. 693. Daly. Judge opinion at 792 Hansen, supra, 450 Schweiker dissenting). (Justice Marshall