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UNITED STATES v. ALLEYNE

June 20, 1978

UNITED STATES of America, Plaintiff,
v.
Gerard ALLEYNE, Defendant


Vincent L. Broderick, United States District Judge.


The opinion of the court was delivered by: BRODERICK

MEMORANDUM ORDER

VINCENT L. BRODERICK, UNITED STATES DISTRICT JUDGE

 This action is before me on plaintiff United States' motion seeking summary judgment in an action alleging violation of laws for the "protection of waters" and "regulation of navigation and navigable waters."

 I have determined, as appears below, that there is no substantial controversy with respect to certain material facts, and that they shall be deemed established pursuant to Rule 56(d), F.R.Civ.P, 28 U.S.C.A. (1971). I have also determined that a hearing is to be held 1) to consider whether the procedures followed by plaintiff in issuing a cease and desist order comported with due process; 2) to determine whether the procedures followed by plaintiff in determining that defendant would not be granted an after-the-fact permit comported with due process; and 3) to take evidence with respect to defendant's allegations that the law has been selectively enforced, as to him, for impermissible reasons.

 I.

 Defendant Gerard Alleyne owns a marina located along the eastern shore of the Hudson River at Hastings-on-Hudson, Westchester County, New York. During the autumn of 1975, defendant caused fill material to be placed in the river along the shoreline, covering a bottom area of approximately 3,750 square feet (30' by 125'). Defendant had neither applied for nor received any permit from the U.S. Army Corps of Engineers ("the Corps"), as required by federal law. This activity also placed defendant in violation of New York State law.

 Under the Regulations, a cease and desist order shall be issued "when the District Engineer becomes aware of any unauthorized activity which is still in progress." 33 C.F.R. Section 209.120(g)(12)(i) (1976). Alleyne did engage in "unauthorized activity."

 Upon learning of the fill activity, a representative of the Corps instructed the defendant to cease and desist that activity. The regulations mandate specific follow-up procedures to a cease and desist order, including an immediate investigation to ascertain the facts surrounding the unauthorized activity, solicitation of views of appropriate Federal, State and local agencies, and a request to the persons involved in the unauthorized activity to provide appropriate information on this activity. 33 C.F.R. Section 209.120(g) (12)(ii). *fn1" The District Engineer is to evaluate the information received and "formulate recommendations as to the appropriate administrative and/or legal action to be taken, . . . ." Id. While the Corps investigated the facts and solicited views from appropriate agencies, it is not clear on the record before me whether the Corps, through the District Engineer or otherwise, requested information from Mr. Alleyne, the "person involved in the unauthorized activity," before taking the administrative and legal actions discussed below.

 The Corps did consult with a number of federal and state agencies as to whether it should issue an "after-the-fact" permit and allow the unauthorized fill to remain, or whether it should take steps to have the fill removed as environmentally harmful.

 Based on the recommendations of the several agencies and its own studies, the Corps decided that the fill should be removed. The Corps sought to have the defendant agree to remove the illegally placed fill, but he refused.

 On March 31, 1976 plaintiff commenced this action, in which it charges defendant with violations of 33 U.S.C. Sections 403 and 1311 (1970) and seeks an order directing defendant to remove the fill. The district court has jurisdiction pursuant to 28 U.S.C. Section 1345 (1976) *fn2" and 33 U.S.C. Sections 406 *fn3" and 1319(b) (1970). *fn4"

 Plaintiff originally moved for judgment on the pleadings before Judge Charles M. Metzner, contending that defendant had admitted all material facts necessary for a finding that a violation of Title 33, U.S.C. Sections 403, 1311 and 1344 had occurred. Defendant admits that he had caused fill material to be placed in the Hudson River and that he had no Corps permit allowing him to do so.

 In opposition to the motion before Judge Metzner, defendant pointed out that the New York State Department of Environmental Conservation ("DEC") was concurrently conducting its own hearings to determine whether the defendant should be ordered to remove the fill material. Defendant had no New York State permit, and the State had already imposed on defendant a penalty of $ 200. Defendant further suggested that he would apply for an after-the-fact Corps permit. In a decision filed December 6, 1976, Judge Metzner denied plaintiff's motion for judgment on the pleadings, stating that the court would await the completion of administrative proceedings "rather than insert its judgment for that of a successive layer of experts." *fn5"

 The State hearings have now been completed, and the State has determined that it will deny defendant an after-the-fact permit, and that it will require defendant to remove the fill material. *fn6"

 To date, defendant has not applied for an after-the-fact permit from the Corps, because the Corps has determined that it will not issue such a permit in this case. ...


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