ELR Citation: ELR 20153
No(s). 72-2381 (5th Cir. Feb 14, 1973)

In an action to enjoin appellee from polluting the Chattahoochee River the Court of Appeals for the Fifth Circuit dismisses the appeal for lack of jurisdiction. The district court's holding (see 2 ELR 20700) that the Chattahoochee is not a tributary of a navigable river and not subject to federal regulation under 33 U.S.C. §407, was impermissibly based on a total absence of evidence; and, consequently, the district court order is not final and appealable. Although arguing in the alternative that the river is navigable or that it is the tributary of a navigable waterway the government presents a single claim, and no piecemeal appeal can be granted.

Counsel for Plaintiff
Raymond N. Zagone
Land and Natural Resources Division
Department of Justice
Washington, DC 20530

Counsel for Defendant
Moreton Rolleston Jr.
2604 First National Bank Building
Atlanta, GA 30303