United States v. Boothby Estate

• Court: Court of Appeals for the First Circuit
• Decided: February 14, 1994
• Docket: 93-1784
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                              _________________________

          No. 93-1784

                              UNITED STATES OF AMERICA,

                                 Plaintiff, Appellee,

                                         v. 

                            THE MEMBERS OF THE ESTATE OF 
                                LUIS BOOTHBY, ET AL.,

                               Defendants, Appellants.

                              _________________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

                    [Hon. Jose Antonio Fuste, U.S. District Judge]
                                              ___________________

                              _________________________

                                        Before

                                Selya, Circuit Judge,
                                       _____________

                            Bownes, Senior Circuit Judge,
                                    ____________________

                               and Cyr, Circuit Judge.
                                        _____________

                              __________________________

               Jose Enrique Colon Santana for appellants.
               __________________________
               Silvia Carreno Coll, Assistant  United States Attorney, with
               ___________________
          whom Guillermo  Gil, United  States Attorney,  was on brief,  for
               ______________
          appellee.

                              __________________________

                                  February 14, 1994

                             __________________________ 

SELYA,  Circuit Judge.   Is  a houseboat  a house  or a
                    SELYA,  Circuit Judge.
                            _____________

          boat?  That, in the abstract,  is the enigma posed by this  case.

          Fortunately, we need not answer it directly.   As a court of law,

          we leave such metaphysical rumination to the disciples of Jacques

          Derrida,  and address  ourselves instead  to  the more  tractable

          question  of  whether the  Army  Corps of  Engineers  (the Corps)

          properly deemed  two  particular  houseboats  to  be  permanently

          moored structures within the meaning  of section 10 of the Rivers

          and  Harbors Act,  33 U.S.C.    403 (1988).   The  district court

          ruled  that the  Corps did  not act  arbitrarily or  capriciously

          either   in   subjecting  the   houseboats   to   the  permitting

          requirements of section 10 or  in refusing to issue permits.   We

          affirm.  

                                          I
                                          I

                    La Parguera is a bay in Puerto Rico acknowledged by all

          interested  agencies  and   groups  to  have  great   beauty  and

          ecological  value.   To slow  deterioration  of the  environment,

          Puerto  Rico   and  the  Corps  signed  a   joint  memorandum  of

          understanding (the J-Mem) in 1978.  Among other things, execution

          of  the  J-Mem  brought  a  screeching  halt  to construction  of

          stilthouses along the shore.  

                    There are, of course, several ways to skin a  cat   or,

          more to the  point, to provide lodging in  a picturesque setting.

          Thus,  after  the  moratorium on  new  construction  took effect,

          numerous  houseboats sprouted  in the  bay.   In 1987,  the Corps

          informed the owners of these houseboats that they were subject to

2

the  permitting requirements  of  section  10.    Some  houseboat

          owners, including  the  appellants,  applied  for  after-the-fact

          permits, but  their applications were  denied.  On June  5, 1990,

          the Corps issued a final order directing all remaining houseboats

          to move.1

                    As   a  test  case  to  establish  its  authority,  the

          government brought suit to enforce  the denial of permits to four

          houseboat owners.  It prevailed below.  See United States v. Seda
                                                  ___ _____________    ____

          Perez, 825 F. Supp. 447 (D.P.R. 1993).  Two of the four houseboat
          _____

          owners, Pedro  Monzon and the  estate of Luis  Boothby, prosecute

          this appeal.

                                          II
                                          II

                    Section 10 of  the Rivers and Harbors Act,  33 U.S.C.  

          403,  outlaws  any unauthorized  "obstruction"  to the  navigable

          capacity of the  waters of the United States.2  Its second clause
                              
          ____________________

               1Appellants failed to seek direct  review of this order in a
          timely fashion.   Yet they  seek review indirectly, for  they are
          resisting the agency's effort to obtain a  determination of legal
          enforceability  by  arguing that  the agency  lacked jurisdiction
          over  their  vessels.     Notwithstanding  this  odd   procedural
          configuration, we think  that appellants can assert  their claim.
          Although  exhaustion  of  administrative   remedies  is  often  a
          prerequisite  to   judicial  review  of   administrative  action,
          jurisdictional  questions are  generally not  waived, because  an
          action taken by an agency lacking jurisdiction is a nullity.  See
                                                                        ___
          Manual Enterprises v. Day, 370 U.S. 478, 499 n.5 (1962).
          __________________    ___

               2The statute provides in pertinent part:

                    The   creation   of   any   obstruction   not
                    affirmatively authorized by  Congress, to the
                    navigable  capacity of  any of the  waters of
                    the United States is prohibited; and it shall
                    not  be  lawful  to  build  or  commence  the
                    building of  any wharf, pier,  dolphin, boom,
                    weir, breakwater,  bulkhead, jetty,  or other

                                          3

contains a  long, non-exclusive  enumeration of  things that  are

          presumed  to constitute  obstructions.    See  United  States  v.
                                                    ___  ______________

          Republic Steel Corp., 362 U.S. 482, 486-87 (1960); Sierra Club v.
          ____________________                               ___________

          Andrus,  610 F.2d  581, 594-97  (9th Cir.  1979), rev'd  on other
          ______                                            _____  __ _____

          grounds, 451 U.S.  287 (1981).  The  statutory list casts a  very
          _______

          wide net.  Included in this list is the term "other structures"  

          a term  defined in the  Corps' regulations to cover  a "permanent

          mooring structure."   33  C.F.R.   322.2(b)  (1993).   We believe

          that this  regulation lawfully can be applied  to houseboats that

          are found to constitute permanently moored vessels.  At least two

          courts agree.   See United  States v. Boyden,  696 F.2d  685, 687
                          ___ ______________    ______

          (9th  Cir. 1983);  United States v.  Oak Beach Inn  Corp., 744 F.
                             _____________     ____________________

          Supp. 439, 444 (S.D.N.Y. 1990).

                                         III
                                         III

                    The standards of review are stringent, and present high

          hurdles  to  parties  challenging   fact-based  decisions  of  an

          administrative agency.  In  scrutinizing administrative action, a

          reviewing court is free to correct errors of law, but, otherwise,

          the  court is  limited to  a search  for arbitrary  or capricious

          behavior.  See  5 U.S.C.   706(2)(A); see also Town of Norfolk v.
                     ___                        ___ ____ _______________

          U.S. Army  Corps of Engineers,  968 F.2d 1438, 1445-46  (1st Cir.
          _____________________________

          1992); United States v. Cannons  Engineering Corp., 899 F.2d  79,
                 _____________    _________________________
                              
          ____________________

                    structures  in  any port,  roadstead,  haven,
                    harbor,  canal,  navigable  river,  or  other
                    water   of   the   United   States,   outside
                    established harbor lines,  or where no harbor
                    lines have been established,  except on plans
                    recommended  by the  Chief  of Engineers  and
                    authorized by the Secretary of the Army . . .
                    .
           
          33 U.S.C.   403 (1988).

                                          4

84 (1st Cir. 1990).  In this search, courts are directed to defer

          heavily to  the agency within  the agency's sphere  of expertise.

          See Chevron USA  v. Natural Resources  Defense Council, 467  U.S.
          ___ ___________     __________________________________

          837, 842-45 (1984).

                    When, as  now, a  district court,  after itself  taking

          evidence,  upholds agency  action, the  hurdle  is higher  still;

          factbound determinations  of the  district  court are  reviewable

          only for  clear  error.   See, e.g.,  Roland M.  v. Concord  Sch.
                                    ___  ____   _________     _____________

          Comm.,  910 F.2d 983, 990 (1st Cir. 1990), cert. denied, 499 U.S.
          _____                                      _____ ______

          912 (1991).   That  precept has  particular pertinence  here, for

          there is  no doubt that  the salient determinations in  this case

          are   fact-intensive.      See  Boyden,   696   F.2d   at  688-89
                                     ___  ______

          (characterizing the  question of whether  certain houseboats  are

          "permanent mooring structures" as one of fact); Oak Beach, 744 F.
                                                          _________

          Supp. at 444 (same).3

                                          IV
                                          IV

                    Appellants'  depth charges are  aimed, in the  main, at

          the  district court's  finding that  their  houseboats should  be
                              
          ____________________

               3To  be  sure, the  Fifth  Circuit has  suggested  that "the
          imprecise statutory language of section 10 leaves the  Corps with
          quasi-legal  authority  to  determine what  `effects'  constitute
          ___________
          `obstructions.'"  Vieux  Carre Property Owners v. Brown, 875 F.2d
                            ____________________________    _____
          453, 463 (5th  Cir. 1989) (emphasis supplied),  cert. denied, 493
                                                          _____ ______
          U.S. 1020  (1990).  But  this suggestion, even if  carried to its
          logical extreme, does not militate in favor of a less deferential
          standard of  review.  While  the key statutory findings  are best
          viewed  as  mixed questions  of  law  and  fact, they  are  fact-
          intensive  and,  therefore, at  least in  this circuit,  they are
          subject to clear-error review.  See In re  Howard, 996 F.2d 1320,
                                          ___ _____________
          1328   (1st  Cir.  1993)  (explaining  that,  if  mixed  fact-law
          questions  are  fact-dominated,  they are  ordinarily  subject to
          review under the clearly erroneous standard); Roland M., 910 F.2d
                                                        _________
          at 990-91 (similar).  

                                          5

considered  as stationary structures.   Much of  this bombardment

          targets  the  court's  subsidiary finding  that  the  houseboats'

          "seaworthiness is doubtful,  to say the least."   Seda Perez, 825
                                                            __________

          F. Supp. at  452.  Appellants argue that the Corps' inspector was

          not competent to make an evaluation of navigability, and that the

          Corps  itself erred in  allowing environmental factors  and other

          impermissible  considerations to  enter the  decisional calculus.

          They also  argue  that the  record as  a whole  cannot support  a

          finding of doubtful navigability -- stressing that the houseboats

          were  certified as  navigable by  the Puerto  Rico Department  of

          Natural Resources  (DNR), that  the houseboats  had acquired  the

          requisite  nautical  accoutrements,   and  that  the   houseboats

          occasionally raised anchor and cruised the bay. 

                    Because  we are in substantial agreement with the lower

          court and see  no profit in trolling  the same waters, we  do not

          wax longiloquent.   In  our view,  three decurtate  observations,

          largely  evocative of the  district court's reasoning,  place the

          assigned errors into bold relief and demonstrate that appellants'

          depth charges miss the mark. 

                    First:  Navigability does not have the same meaning for
                    First:
                    _____

          all  purposes; hence, the DNR's determination of navigability, in

          a  markedly  different  context,  cannot  be  accorded  decretory

          significance with regard to  the Corps' permitting process.   The

          district court was  free to  consider, and,  ultimately, to  rely

          upon, the contrary evidence before it.

                    Appellants  contest this point both in the abstract and

6

in  the particular.    They  save their  loudest  outcry for  the

          district court's acceptance of the opinion testimony offered by a

          Corps official  lacking specialized  nautical training.   We  are

          unimpressed with this line of  argument.  Under the Federal Rules

          of Evidence,  a trial  judge has  broad  latitude in  determining

          whether  a proffered expert  has suitable qualifications  to give

          opinion testimony relating  to a given topic.   See United States
                                                          ___ _____________

          v. Ladd, 885 F.2d 954, 959-60 (1st Cir. 1991); Marshall v. Perez-
             ____                                        ________    ______

          Arzuaga, 828  F.2d 845,  851 (1st Cir.  1987), cert.  denied, 484
          _______                                        _____  ______

          U.S.  1065 (1988).   And,  moreover,  a witness  need not  always

          possess  a particular degree or set of educational qualifications

          in order to offer opinion testimony.  See, e.g., United States v.
                                                ___  ____  _____________

          Hoffman,  832  F.2d  1299,  1310 (1st  Cir.  1987)  (witness with
          _______

          "extensive  practical experience in the field" allowed to testify

          as an expert despite  lack of "formal schooling");  Marshall, 828
                                                              ________

          F.2d at  851 (similar);  Grain Dealers Mut.  Ins. Co.  v. Farmers
                                   ____________________________     _______

          Union Coop.  Elevator & Shipping  Ass'n, 377 F.2d 672,  679 (10th
          _______________________________________

          Cir. 1967) (similar);  see also  Fed. R. Evid.  702.  Given  this
                                 ___ ____

          flexible  standard,  we  cannot  fault  the  district  court  for

          electing to credit the opinion  of a Corps official familiar with

          both the  Corps' regulations and  the vessels  at issue.   Such a

          person is highly  qualified to testify regarding  the application

          of those regulations to those vessels, even if she is not a naval

          architect.  See Boyden, 696 F.2d at 688.
                      ___ ______

                    It  is also appropriate to note that the district court

          did not embrace this testimony in  a vacuum.  The district  judge

7

also  drew  on  testimony from  a  court-appointed  expert, whose

          qualifications  have  not  been  assailed,  as  well  as  on  the

          photographs and other documentary evidence.  We,  ourselves, have

          reviewed the administrative record, the trial transcript, and the

          exhibits.  Notwithstanding  the DNR certification, we  think that

          the  subsidiary   finding  of  doubtful   navigability  is  amply

          supported, and that  the district court's conclusions  respond to

          the weight  of the  evidence.   Because we  are not  left with  a

          "strong,  unyielding belief that  a mistake has  been committed,"

          Cumpiano v.  Banco Santander, 902  F.2d 148, 152 (1st  Cir. 1990)
          ________     _______________

          (outlining test for clear error),  we uphold the finding that the

          houseboats were of dubious seaworthiness.  

                    Second:    Appellants  berate  the  district  court for
                    Second:
                    ______

          considering  motive, intent,  and  environmental factors,  rather

          than limiting its inquiry strictly  to capacity to navigate.  But

          navigability is  only one  element in  the statutory  assessment.

          Since  neither the statute nor the regulations place restrictions

          on the Corps'  discretion to issue permits, see  Di Vosta Rental,
                                                      ___  ________________

          Inc. v. Lee, 488 F.2d 674, 677 (5th Cir. 1973), cert. denied, 416
          ____    ___                                     _____ ______

          U.S.  984 (1974),  the agency  was  fully entitled  to take  into

          account other pertinent factors.  

                    We  are confident that, under this standard, motive and

          consequence  qualify.   And we  hasten to  add that  the district

          court's findings as to appellants' motives  are solidly rooted in

          the record.  In sum, the court spotted a pattern  of deceit:  the

          houseboats  were   put  in  place   to  circumvent  the   ban  on

8

stilthouses;  they were primarily  intended to serve  as vacation

          homes, pure  and simple; the  gadgets attached to them  over time

          were meant to camouflage the scheme rather than for seafaring per
                                                                        ___

          se;  and  the   occasional  jaunts  about  the   bay  represented
          __

          perfunctory attempts  to satisfy the  terms of the statute.   See
                                                                        ___

          Seda-Perez, 825 F. Supp. at 449 n.2, 451-52.  Taking these  facts
          __________

          as warrantably  found by the  trier, one can hardly  fault agency

          officials for being  concerned more with intent  to navigate than

          with capacity  to navigate.   After  all,  if an  owner does  not

          intend  to  cast off,  his  or  her  vessel  can be  said  to  be

          "permanently moored" in  the relevant sense, notwithstanding  the

          theoretical possibility that the craft is capable of navigation.

                    Nor  can the agency's  attention to  the impact  of the

          houseboats on  the ecosystem of  La Parguera be faulted.   Agency

          officials understood what  appellants evidently do not:  that the

          Rivers and Harbors Act has been transformed into an instrument of

          environmental  policy.   This transformation  occurred long  ago.

          Indeed, Justice Douglas  could hardly have been more  plain:  the

          Act must  be read "charitably,"  with full consideration  for the

          public purposes to be  served.  Republic Steel, 362  U.S. at 491;
                                          ______________

          see also United States v. Standard  Oil Co., 384 U.S. 224, 225-26
          ___ ____ _____________    _________________

          (1966) (justifying expansive reading of  section 13 of the  Act).

          The  Court expressly  forbade  "a  narrow,  cramped  reading"  of

          section 10, Republic  Steel, 362 U.S. at 491,  because "[a] river
                      _______________

          is  more than  an amenity, it  is a  treasure," id.  (quoting New
                                                          ___           ___

          Jersey v. New York, 283 U.S. 336, 342 (1931) (Holmes, J.)). 
          ______    ________

9

In recognition of the evolution  of the Act, the Corps'

          general policies  for evaluating permit applications,  which were

          scrupulously  applied in this  case, are dominated  by ecological

          concerns.  See  33 C.F.R.   320.4  (1993).  These concerns  do no
                     ___

          violence to  the statutory language.  They are rationally related

          to  the goals of  the Act.   Consequently, they may,  and should,

          drive  policy.  In  arguing to the  contrary, appellants' counsel

          has missed the boat. 

                    Third:   In any event, the finding  that the houseboats
                    Third:
                    _____

          constitute  "structures"   is  not  necessary  to   the  ultimate

          determination  that  the  houseboats  constitute  "obstructions."

          Section   10's  permitting  requirements   may  be  triggered  by

          something other than those items enumerated in  the second clause

          of the  section, if that  "something" plausibly can be  deemed an

          obstruction to navigation.   See supra pp. 3-4 & n.2.   With this
                                       ___ _____

          in  mind, the  district court  made  an alternative,  independent

          finding  that the  houseboats, regardless  of  whether they  were

          permanently moored structures, nonetheless obstructed navigation.

          See Seda Perez, 825 F. Supp at 452.
          ___ __________

                    We  agree   fully  with  the   district  court's  legal

          analysis, and we are unable to say that its underlying finding of

          fact is clearly erroneous.   Nevertheless, we choose to affirm on

          the court's primary  ground of decision   that  the houseboats in

          this instance constituted  structures   rather than  explore here

          the limits of what constitutes an obstruction outside the list of

          presumptive  obstructions   contained  in  the   statute  itself.

10

Although we  take the Court's  lead in construing the  Rivers and

          Harbors  Act in  spirit with  the times,  we remain  wary of  the

          danger that  it might be  construed so broadly as  to criminalize

          the dumping  of tap  water, see  Standard Oil,  384  U.S. at  234
                                      ___  ____________

          (Harlan, J., dissenting).

V
                                          V

                    We  need go  no further.4   Appellants  have failed  to

          find a route to safe harbor.  Thus, the order and judgment of the

          district court enforcing the agency's eviction order must be 

Affirmed.  Costs to appellee.
          Affirmed.  Costs to appellee.
          ________   _________________

____________________

               4Because  an  appellate  court is  not  obliged  to consider
          arguments presented  in a perfunctory  manner, see Ryan  v. Royal
                                                         ___ ____     _____
          Ins. Co.,  916 F.2d  731, 734 (1st  Cir. 1990),  we do  not probe
          ________
          appellants'  plausible,  but  undeveloped,  suggestion  that  the
          injunction  issued  below  is overbroad  to  the  extent  that it
          encompasses a  matter of state  law not raised in  the pleadings.
          At  any  rate, amending  the injunction  to delete  the state-law
          reference  would make  no  practical  difference  except  in  the
          unlikely  event  of a  major  policy shift  by  the  Corps.   The
          district court can, of course,  revisit this aspect of the matter
          if circumstances change  or if for any other reason it chooses to
          do so.

                                          11