ELR Citation: ELR 21061
No(s). 84-1766 (4th Cir. Jul 30, 1985)

In a Federal Water Pollution Control Act §404 enforcement appeal, the court rejects defendant's Commerce Clause, void-for-vagueness, and jury trial claims and holds that the government was not equitably estopped from bringing this action. The court first holds that regulation of wetlands is within the federal government's power under the Commerce Clause, since loss of wetlands can have a negative effect on adjacent navigable waters. The court further holds that although the government lost a previous wetlands case against Tull in which he raised a Commerce Clause defense, it is not collaterally estopped from disputing his argument here, since the other case did not squarely address the Commerce Clause issue. The court then rejects Tull's claim that the statutory definition of wetlands is unconstitutionally vague. Also, Tull had no right to a jury trial under the Seventh Amendment. The court accepts the lower court's finding that the government did not actively mislead Tull about the lawfulness of his actions, so there can be no claim of equitable estoppel. Neither could the government be faulted for delay in bringing this suit, since it had brought other judicial and administrative actions against Tull, which should have informed him that his filling activities were illegal. Finally, the court holds that a man-made waterway filled by Tull was navigable within the meaning of the Rivers and Harbors Act, since it was subject to the ebb and flow of the tide.

A dissent would hold the government equitably estopped from seeking penalties, since it had advised Tull that certain of his plans would not require a permit, observed Tull's filling for five years without objection, and did not bring suit until after he had sold the land to third parties. Also, the dissent would have awarded a jury trial on the legal issue of whether to award civil penalties.

Counsel for Appellant
Richard R. Nageotte
Nageotte, Borinsky & Zelnick
14908 Jefferson Davis Highway, Woodbridge VA 22191
(703) 491-4136

Counsel for Appellee
Claire L. McGuire
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2855

Before WINTER, Chief Judge, SNEEDEN, Circuit Judge, and WARRINER, United States District Judge for the Eastern District of Virginia, sitting by designation.