United States v. Riverside Bayview Homes, Inc.

PETITIONER: United States
RESPONDENT: Riverside Bayview Homes, Inc.
LOCATION: Hardwick's Apartment

DOCKET NO.: 84-701
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 474 US 121 (1985)
ARGUED: Oct 16, 1985
DECIDED: Dec 04, 1985

ADVOCATES:
Edgar B. Washburn - on behalf of the Respondents
Kathryn Anne Oberly - on behalf of the petitioner
Ms. Kathryn A. Oberly - on behalf of the petitioner

Facts of the case

Question

Media for United States v. Riverside Bayview Homes, Inc.

Audio Transcription for Oral Argument - October 16, 1985 in United States v. Riverside Bayview Homes, Inc.

Warren E. Burger:

We will hear arguments next in United States against Riverside Bayview Homes.

Ms. Oberly, I think you may proceed whenever you are ready.

Kathryn Anne Oberly:

Thank you, Mr. Chief Justice, and may it please the Court, the issue in this case is whether Riverside's property is wetland subject to the Corps of Engineers permit jurisdiction under Section 404 of the Clean Water Act.

The Act prohibits the discharge of any pollutant into waters of the United States without a permit, and the Act further defines dredge and fill material as a pollutant.

In this case, Riverside began filling without a permit in 1976.

The Corps issued a cease and desist order which Riverside ignored.

The United States obtained a temporary restraining order from the District Court which Riverside also ignored, and eventually the District Court held Riverside in contempt of court, and ultimately the District Court at the time Judge Kennedy issued a preliminary injunction in joining Riverside from further filling activity on its property absent a permit from the Corps of Engineers.

Riverside appealed, but in the meantime the regulations defining wetlands had been changed, and so the United States asked that the case be remanded to the District Court to consider the effect of the new regulations on the facts of this case, and on remand, Judge Gilmore, who by this time the case had been reassigned to, applied the facts as found by Judge Kennedy in her lengthy trial to the new regulations, and found again that Riverside's property was a wetland within the Corps' jurisdiction, and again entered a permanent injunction prohibiting Riverside from filling without a permit.

On Riverside's second appeal, the Sixth Circuit reversed.

In its initial opinion, the Court based its decision on its interpretation of the Corps' revised regulations.

The court interpreted the language in the regulations, which we have quoted in our brief, that relates to ground water saturation as being basically irrelevant.

The way the court treated it as irrelevant was by... to not quote it every time the court mentioned the new regulation.

Instead, the court concluded that the new regulations under which this case was now to be decided required that any wetland vegetation on a piece of property be caused, actually caused by what the Court of Appeals called frequent flooding, which does not appear in the regulations anywhere, frequent flooding from adjacent navigable waters.

Essentially what the court was doing in our opinion was reinstating a requirement in the 1975 regulations for periodic inundation that had been eliminated and was the basis for the United States' motion that the case be remanded to the District Court for reconsideration under the revised regulations.

Even though the government thought that the Court of Appeals panel opinion had misinterpreted the regulations, we also thought initially that this was perhaps something the government could have corrected administratively by simply issuing revised or clarified regulations explaining that this was never the intent of the regulations, and that could have solved the problem.

Sandra Day O'Connor:

Ms. Oberly, may I inquire, in your reply brief it seemed to me that for the first time the government was saying that the land in this case is connected by open water to a navigable river of the United States.

So is the position you are now taking that there is a direct surface connection between the land at issue here and the navigable waters?

Kathryn Anne Oberly:

Absolutely, Your Honor.

There is the clearest, and I had planned to be talking about--

Sandra Day O'Connor:

Well, why, then, didn't the Corps just show that surface connection before the District Court and not bother with subsurface connections?

It just seemed to change the whole theory in your reply brief.

Kathryn Anne Oberly:

--Your Honor, in all fairness to Judge Kennedy and the Sixth Circuit, this was one of the first Section 404 cases ever tried.

I don't think, again, in all fairness to everybody concerned, but at the time of the trial, anybody knew exactly what they were doing.

Sandra Day O'Connor:

Well, it does seem to me that if the theory that you now assert is correct, that there is a direct surface connection to navigable water, that the case is substantially--

Kathryn Anne Oberly:

I agree with you completely.

I think that much, if not all of what went on before Judge Kennedy was irrelevant, which was the reason why when the case first came up on appeal, the United States moved for the remand, from the Court of Appeals back to the District Court, and it was our intention that these irrelevancies which comprise about 90 percent of the District Court record in our view would be just completely set aside.

We would start over with a clean slate, try the case properly, and we were always certain as in fact turned out to be the case, that the United States would and should win this case under the new regulations as well as under the old ones, but our hope was to sweep away what had really diverted everybody's--

Byron R. White:

--What did the District--

Kathryn Anne Oberly:

--attention from the pertinent issues in the case.

Byron R. White:

--What did the District Court... wasn't there some expert testimony on the connection between this wetland and the navigable waters?