ELR Citation: ELR 20206
No(s). 80-2069 (D. Idaho Jan 16, 1985)

The court holds that the Corps of Engineers has jurisdiction to require Rivers and Harbors Act §10 and Federal Water Pollution Control Act §404 permits for construction on lands owned by plaintiffs but inundated by a rise in lake level caused by a Corps dam and subject to a Corps flowage easement. The court first rejects the government's exhaustion of administrative remedies argument. Plaintiffs are not seeking a permit from the court, but a declaration about Corps jurisdiction, and the Corps has no administrative procedure for challenging its asserted jurisdiction. The court next addresses ripeness issues. The Corps jurisdiction issue is ripe for judicial determination. Plaintiff Swanson has constructed the disputed improvements, and the Corps has issued a stop work order; and actual and present controversy clearly exists. But plaintiffs also seek a declaratory judgment about public access rights, and there is no actual controversy on that issue; the government has not claimed the right to public access.

The parties stipulated that the lake was a navigable water prior to the dam-inducted water level rise and that the waters above the old high watermark are capable of supporting commercial interstate transport. Therefore, the court finds, the entire lake falls under the Corps definition of navigable water. Following an old Supreme Court case, the court holds that Congress' Commerce Clause powers extends to altered boundaries of navigable waters. Finally, Congress has exercised those powers in both acts, requiring permits for activities in navigable waters. Since Congress had constitutional power and exercised it, the Corps regulations are valid and plaintiffs' activities are subject to Corps regulation. In closing, the court emphasizes that its holding does not necessarily imply government power to grant public access rights.

Counsel for Plaintiff
Stephen Herndon
McAdam, Herndon & Harrison
P.O. Box 216, Sandpoint ID 83864
(208) 263-2108

Counsel for Defendant
Dean Dunsmore, Michael Neville
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2800