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June 20, 1978

UNITED STATES of America, Plaintiff,
Gerard ALLEYNE, Defendant

Vincent L. Broderick, United States District Judge.

The opinion of the court was delivered by: BRODERICK



 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.


 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. *fn7"


 Under Rule 56, F.R.Civ.P., 28 U.S.C.A. (1971), *fn8" summary judgment is appropriate where the pleadings, affidavits and other papers filed show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

 There is no issue as to the fact that defendant caused an obstruction to the navigable capacity of a navigable river of the United States. Therefore, as a matter of law defendant is in violation of 33 U.S.C. Section 403. *fn9"

 Defenatant is also charged with violation of 33 U.S.C. Section 1311. *fn10" Section 1311 prohibits discharge of any pollutant into navigable waters *fn11" unless there is compliance with certain other sections, one of which is Section 1344. *fn12" Under these sections the Corps has jurisdiction "not only to issue permits, but to [request or require] applications for permits for any discharge of dredged or fill material into navigable waters of the United States, . . . ." Leslie Salt Co. v. Froehlke, 403 F. Supp. 1292, 1297 (N.D. Cal. 1974). See also P.F.Z. Properties, Inc. v. Train, 393 F. Supp. 1370, 1381 (D.D.C. 1975). A requirement of an application for a permit for the discharge of dredged or fill material into navigable waters is set forth explicitly in 33 C.F.R. Section 209.120(e) (2) (1976). *fn13" Thus, defendant violated Section 1311 when he caused fill to be placed into the Hudson River without first obtaining a permit.


 Despite the clear factual violations, defendant has submitted several arguments in opposition to summary judgment.

 1. Damage to the environment. Defendant alleges first that his action did not damage the environment.

 Both federal and state administrative agencies have found that the fill placed into the water by defendant is damaging to the environment. *fn14" In any case, the United States need not show irreparable injury to obtain injunctive relief under 33 U.S.C. Sections 403 and 406. See United States v. Stoeco Homes, Inc., 498 F.2d 597, 611 (3rd Cir. 1974), cert. denied, 420 U.S. 927, 43 L. Ed. 2d 397, 95 S. Ct. 1124 (1975); Shafer v. United States, 229 F.2d 124, 128 (4th Cir.), cert. denied, 351 U.S. 931, 100 L. Ed. 1460, 76 S. Ct. 788 (1956).

 2. Intent as a prerequisite to the creation of an obstruction. Defendant next argues against summary judgment on the ground that an injunction ordering removal of an obstruction placed in violation of Section 403 is not proper unless there was intent by defendant to create the obstruction. He urges that since he did not intend to violate any law, an injunction should not issue. Defendant cites United States v. Bridgeport Towing Line, Inc., 15 F.2d 240 (D. Conn. 1926), for the proposition that "creation of obstruction, as far as the remedy by injunction is concerned, means a conscious creation, not one brought about by accident or negligence." *fn15"

 Defendant misapprehends the concepts of "intent" and "conscious creation" in United States v. Bridgeport Towing Lines, Inc., supra. The court interpreted the terms "creation" and "obstruction" to encompass the foreseeable consequences of one's action:


Not that it is necessary that the purpose be to create an obstruction, but that such a result is reasonably to be apprehended from the acts actually intended . . . . wholly irrespective of whether or not there was a design to create an obstruction to navigation, . . . .

 Id. at 241. Defendant "intended" to create the obstruction, because it was reasonably foreseeable that placing fill in the river would obstruct navigation; it was a "conscious creation". Thus the fill discharged into the river is an "obstruction" within the meaning of Section 403. *fn16"

 3. Collateral estoppel and res judicata. Defendant urges that the federal government may not proceed because of doctrines of collateral estoppel and res judicata. He contends that plaintiff was a party in the state administrative proceedings and so is estopped from bringing this action.

 However, at the beginning of the state hearing, Hearing Officer Robert S. Drew made it clear that the federal government was not involved and that the state agency, in holding its hearing, did not purport to bind the federal government:


I should say that any project of this nature involving filling of land under water, land in the Hudson River, the U.S. Army Corps of Engineers also has jurisdiction and this hearing is only to consider the action by the Department of Environmental Conservation and this hearing today is independent of any procedures or actions that may be undertaken by the U.S. Army Corps of Engineers. *fn17"

 Plaintiff was not a party to the state action and is not estopped from bringing this action.

 4. The doctrine of abstention. When the State of New York denied defendant's application for a state after-the-fact permit, defendant sought judicial review of the administrative determination pursuant to Article 78, N.Y.CPLR. The state court denied defendant's application, without prejudice to its renewal. While defendant has not yet refiled an Article 78 proceeding, he expresses an intent to do so. He asks that this court abstain, pending state court review of the denial of his application for a state after-the-fact permit.

 Abstention is appropriate in the following categories of cases: 1) cases presenting a federal constitutional issue which might be mooted or presented in a different posture by a state court determination of pertinent state law; 2) cases where there have been presented difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar; and 3) cases where, absent bad faith, harassment, or a patently invalid state statute, federal jurisdiction has been invoked for the purpose of restraining state criminal convictions, state nuisance proceedings antecedent to criminal prosecution, or collection of state taxes. Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-16, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976) and cases cited therein. The case before me does not fall within any of these categories.

 The only other rationale for abstention in this case stems from the "General Policies for Evaluating Permit Applications" set forth at 33 C.F.R. Section 209.120(f) (1976). Pursuant to subparagraph (3) thereof, federal authorities will not issue a permit if a parallel permit has been denied by a state. If the state denial is under reconsideration, the federal authorities will not act for 90 days, to provide an opportunity for the applicant to resolve the problems with his state permit. If there is no resolution after 90 days, the federal application will be denied. Obviously the "abstention" contemplated by this regulation is administrative and not judicial: at any rate, the defendant has waited far in excess of 90 days to refile his Article 78 proceeding or seek resolution through other means. Abstention on the basis of 33 C.F.R. § 209.120(f)(3) is not warranted.

 Thus none of the above considerations suggests any basis for not proceeding herein. I find, therefore, pursuant to Rule 56(d), F.R.Civ.P., 28 U.S.C.A. (1971), *fn18" that the facts set forth in Part II of this opinion are not in controversy and are deemed established.


 Defendant has not applied for a federal after-the-fact permit because, as indicated above, the Corps has already determined that one would not issue. Defendant alleges that this determination, without notice and a hearing, constitutes arbitrary and capricious action, in violation of his rights to due process under the statute and regulations promulgated thereunder.

 The appropriate procedure to challenge such administrative action is set forth in Section 706 of the Administrative Procedure Act, 5 U.S.C § 706 (1977). Although defendant has not specifically alleged violation of Section 706, his contentions are set forth in his papers, and in accordance with liberal rules of pleading I shall address the issue.

 Defendant cites Section 1344 of Title 33 *fn19" for his argument that he is entitled to notice and hearing in connection with an application for an after-the-fact permit. As discussed below, the notice and hearing provisions of Section 1344 and regulations thereunder are addressed to objectors to a permit application, not to the applicant. However, the regulations do provide safeguards for applicants which are relevant here.

 The procedures to be followed with respect to "activities performed without proper authorization" are set forth at 33 C.F.R. Section 209.120(g)(12) (1976). Pursuant to subparagraph 209.120(g)(12)(iii) "processing and evaluation of applications for after-the-fact authorizations . . . . will in all other respects *fn20" follow the standard procedures of this regulation."

 The standard procedures are set forth at 33 C.F.R. Section 209.120(i)(1) (1976). Pursuant to subparagraph 209.120(i)(1)(i), the District Engineer, upon receipt of an application, *fn21" must acknowledge receipt, review the application for completeness and obtain from the applicant any additional information he deems necessary for further processing.

 Public notice of the proposed application is posted or published in the vicinity of the site of the proposed work, and is sent to concerned federal and state agencies and organizations and to any other interested parties, including the applicant. Section 209.120(i)(1)(ii). Section 209.120(j)(1) clarifies the purpose of the public notice requirement, "the public notice is the primary method of advising all interested parties of the proposed activity for which a permit is sought and of soliciting comments and information necessary to evaluate the probable impact on the public interest." Where, as here, the activity involves discharge of fill material into navigable waters, the public notice must include the statement that "any person who has an interest which may be adversely affected by the issuance of a permit may request a public hearing." Section 209.120(j)(1)(x).

 "[A] lack of response [to the public notice] will be interpreted as meaning that there is no objection to the application." Section 209.120(j)(2). Thus it is clear that defendant has no statutory interest in, or right to, notice and a hearing. To the contrary, defendant would hope that no public hearing was requested.

 However, the regulations do afford the applicant an opportunity to submit arguments in addition to those submitted with his application. Pursuant to Section 209.120(i)(1)(iii), the District Engineer must consider all comments received in response to the public notice and, of special significance here, must give the applicant "the opportunity to furnish the District Engineer his proposed resolution or rebuttal to all objections from Government agencies and other substantive adverse comments before final decision will be made on the application."

 Since there was no public notice of any proposed after-the-fact permit in this case, no "objections" were submitted in response to such notice. However, the Corps had in its possession materials, from government agencies, objecting to defendant's activity and recommending removal of the fill. Nothing in the record before me indicates that defendant ever was afforded an opportunity to rebut the objections made by government agencies in this case. If this is true, plaintiff has not complied with the due process protections for after-the-fact permit applications prescribed by the statute and regulations. *fn22" I find that an evidentiary hearing is necessary to dispose of this issue.

 As stated above, it is unclear also whether and to what extent the Corps respected defendant's right to have an opportunity to be heard with respect to the Corps' determination of what action should follow the cease and desist order which it issued, *fn23" and whether the procedure which the Corps followed afforded due process protections comparable to those established for an after-the-fact permit application. I find, therefore, that a hearing is necessary with respect to this matter.


 In his opposing papers, defendant has raised an additional issue which necessitates further court proceedings. He has alleged selective enforcement of the state and federal laws prohibiting fill and discharge. *fn24"

 To sustain a defense of selective enforcement, defendant must make a prima facie showing of "intentional and purposeful discrimination." He must establish not only that plaintiff has proceeded against him and not against others similarly situated, but also that he was selected as an enforcement target for constitutionally impermissible reasons:


To support a defense of selective or discriminatory prosecution, a defendant bears the heavy burden of establishing, at least prima facie, (1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights. These two essential elements are sometimes referred to as "intentional and purposeful discrimination."

 United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974).

 Defendant alleges that other parties in the area who have discharged fill into the river have not been prosecuted. The government has not disputed his claim of lack of prosecution against others. *fn25"

 As to the second prong of the standard set forth in United States v. Berrios, supra, defendant, a black man, contends that he was discriminatorily selected for enforcement because of his race. He states that the other parties in his area who have not been prosecuted for violations are white. Apparently, defendant is the only black person in his area who is discharging fill, and he has submitted photographs portraying allegedly illegal discharge of fill into the river by white people adjacent to his property. *fn26"

 These allegations, if proven, do establish a defense of illegal selective enforcement by federal authorities. I find that an evidentiary hearing is warranted to afford defendant the opportunity to substantiate his claims. See United States v. Ojala, 544 F.2d 940, 944 (8th Cir. 1976).


 Dated: New York, New York, June 20, 1978

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