United States v. Joseph A. Boccanfuso

882 F.2d 666, 19 Envtl. L. Rep. (Envtl. Law Inst.) 21388, 30 ERC (BNA) 1292, 1989 U.S. App. LEXIS 12182, 1989 WL 90815

• Court: Court of Appeals for the Second Circuit
• Decided: August 9, 1989
• Docket: 902, Docket 88-6256
• Status: Published

Opinions

OAKES, Chief Judge:

This appeal involves the question whether the Government is estopped from asserting a claim against a landowner for a violation of the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (1982 & Supp. V 1987) (“the Act”). The landowner, Joseph Boccanfuso, placed fill and constructed a seawall in waters of the United States without a section 404 permit, see id. § 1344, from the Army Corps of Engineers (“the Corps”). See id. § 1311(a). The United States District Court for the District of Connecticut, T.F. Gilroy Daly, Judge, held that although the seawall and fill violated the Act, the Government was estopped from asserting a claim against Boccanfuso. United States v. Boccanfuso, 695 F.Supp. 693, 695 (D.Conn.1988). The district court found that the combination of an oral misstatement of the Corps’ jurisdiction by a Corps official and the Corps’ failure timely to process Boccanfuso’s application for a section 404 permit amounted to sufficient affirmative misconduct by the Corps for the Government to be estopped. We reverse and remand.

Boccanfuso owns three pieces of property at 80, 84, and 88 Harbor Road (“Areas # 3, # 2 and # 1,” respectively), abutting the Saugatuck River in Westport, Connecticut. Although at various times all three areas have been the subject of extensive dealings between the Corps and Boccanfu-so, only Area # 2 is at issue on this appeal.

A brief description of the jurisdiction of the Corps may help to explain Boccanfuso’s claimed confusion. The Corps asserts that Boccanfuso violated the Clean Water Act. Under that act, the Corps’ jurisdiction extends inland to the “high tide line,” 33 C.F.R. § 328.4(b) (1988), which the district court noted is often referred to as the “extreme high tide.” A potential source of confusion for Boccanfuso is that the Rivers and Harbors Act of 1899, 33 U.S.C. §§ 401 et seq., gives the Corps jurisdiction up to the “mean (average) high water” line, which is the average point reached by high tides over 18.6 years, see 33 C.F.R. § 329.12(a)(2) (1988). The Corps’ jurisdiction under the Clean Water Act is greater than its jurisdiction under the Rivers and Harbors Act; there was testimony that on Boccanfuso’s property, the high tide line was about a foot higher than the mean high water line, or, according to Boccanfu-so’s brief on appeal, ten to fifteen feet further inland. The structures that Boc-canfuso built in Area # 2 were landward of the mean high water line, so they were within the Corps’ Clean Water Act jurisdiction, but not its Rivers and Harbors Act jurisdiction. Boccanfuso’s stance at trial was that he was unaware of the Corps’ more extensive Clean Water Act jurisdiction.

In 1981, during a routine inspection, Brian Valiton, a Corps inspector, discovered that Boccanfuso had placed fill below the extreme high water mark in Area # 1 and was mending jetties in that area. In a letter dated June 16, 1981, the Corps ordered Boccanfuso to cease and desist

any work seaward of the mean high water line in tidal waters or the ordinary high water line in non-tidal waters or the placing of any fill material seaward of the extreme high tide line and in all waters of the United States and their adjacent wetlands unless expressly authorized to do so by a Corps of Engineers permit.

Letter from Robert J. Desista to Joseph Boccanfuso (June 16, 1981), quoted in Boc-canfuso, 695 F.Supp. at 695. The Corps directed Boccanfuso to submit an after-the-fact application for Area # 1. To comply with the Corps’ mandate, Boccanfuso hired a marine architect, Ed Campbell, to draft the necessary drawings for the application. In February 1982, Campbell submitted plans for the pre-existing structures in Area # 1 and for planned improvements to Area # 2. The Corps returned Campbell’s plans for revision, requesting, inter alia, identification of the extreme high tide line. Following the resubmission of Boccanfu-so’s plans in November 1982 and a public notice in February 1983, the Corps denied Boccanfuso a section 404 permit because there was a less damaging alternative: developing above the high tide line.

Meanwhile, from June 1981 through June 1984, Boccanfuso sought to convince the Corps that fill Area # 1 had been constructed prior to 1968 and was therefore grandfathered under a then-existing nationwide permit. As part of this endeavor, Boccan-fuso met in June 1984 at his home on Harbor Road with Marita Yoder of the Corps and Sally Bolster, a representative from the late Congressman Stewart McKinney’s office. Yoder told Boccanfuso that the Corps’ jurisdiction extended only to the mean high water mark and that he could place riprap (large stones) in front of an old seawall in Area # 2, and Boccanfuso later did so.

Apparently in the wake of the havoc wreaked along the Saugatuck shoreline by Hurricane Gloria in 1985, Boccanfuso asked Campbell to prepare drawings for two new seawalls in Areas #2 and #3. The proposed seawall in Area # 2 was to be situated in the same area as the one that the Corps had rejected in 1983, although it would lie a few feet landward. On February 3, 1986, Campbell submitted the plans with a cover letter requesting that the Corps respond within ten days if the proposed seawalls came within its jurisdiction. According to Campbell’s letter, the proposed seawalls were to be built above the mean high tide line. No formal application form accompanied the plans. The Corps did not respond directly to Campbell’s written request. Campbell did receive a general mailing from the Corps on April 4, 1986, advising him of its jurisdiction, but the letter did not tell which water line determines Clean Water Act jurisdiction:

A Corps of Engineers permit is required for all work beyond mean high water in navigable waters of the United States under Section 10 of the River and Harbor Act of 1899. * * * Permits are also required under Section 404 of the Clean Water Act for those activities involving the discharge of dredged or fill material in all waters of the United States, including not only navigable waters of the United States, but also inland rivers, lakes and streams and their adjacent wetlands.

Letter from Richard Roach to Edward Campbell (Apr. 4, 1986).

Boccanfuso testified that he telephoned a Corps official named Chris Lindsay, who sent Boccanfuso on April 10, 1986, a pamphlet with the highlighted statement: “The best way to avoid a need for a permit is to select a site that is above the high tide line and avoids wetlands.” At a meeting of the Westport Planning and Zoning Commission on April 17, 1986, an urban planner told Campbell that a Corps official had informed the planner that the Corps’ jurisdiction under the Act extended to “mean tide,” which was one foot above the mean high water line mentioned in the April 4 general mailing. Boccanfuso, nevertheless, constructed the seawall in Area # 2 in August 1986.

Shortly thereafter, Valiton, the Corps inspector, examined Boccanfuso’s newly constructed seawall in Area #2 and advised him that it appeared to be within the Corps’ jurisdiction, i.e., below the extreme high tide line. On September 10, 1986, the Corps wrote to Campbell, advising him that the Corps' jurisdiction extended to the extreme high tide line and that Boccanfuso had placed fill seaward of that line in Area #2. However, a copy of the letter was never sent to Boccanfuso and, surprisingly, Campbell apparently never mentioned it to him. In November 1986, Boccanfuso constructed his seawall in Area # 3.

The district court found that Boccanfu-so’s construction of the seawalls in Areas #2 and #3 violated the Act. However, the court held that the Government was estopped from enforcing the Act with regard to Area # 2 because of the misleading statements of Marita Yoder and the Corps’ failure timely to process Boccanfuso’s application. The district court found that these two events together constituted affirmative misconduct by the Corps so that estoppel applied. However, with regard to Area # 3, the district court found that the Government was not estopped and ordered Boccanfuso to file an after-the-fact permit and pay a fine of $2,000. That holding was not appealed.

DISCUSSION

On appeal, the Government argues that it should not be estopped from asserting claims against Boccanfuso for violations of the Act because: (1) his reliance on an oral misstatement by a Corps official was not reasonable in light of the numerous correct oral and written representations that the Corps made to Boccanfuso and Campbell as to its jurisdiction; and (2) the Corps’ conduct, i.e., Yoder’s statements and the failure timely to process Boccanfuso’s section 404 application, did not amount to affirmative misconduct. We accept both of these arguments.

The principle of equitable estoppel is not applied to the Government on the same terms as it is to private citizens. See Heckler v. Community Health Servs., 467 U.S. 51, 60, 104 S.Ct. 2218, 2224, 81 L.Ed.2d 42 (1984); Schweiker v. Hansen, 450 U.S. 785, 788, 101 S.Ct. 1468, 1470, 67 L.Ed.2d 685 (1981) (per curiam); INS v. Hibi, 414 U.S. 5, 8, 94 S.Ct. 19, 21, 38 L.Ed.2d 7 (1973); Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 383, 68 S.Ct. 1, 2, 92 L.Ed. 10 (1947). The different standard for estoppel of the Government springs from the tenet that estoppel would frustrate the Government’s ability to enforce the law and, in turn, undermine the public interest in full enforcement of the law. Community Health Servs., 467 U.S. at 60, 104 S.Ct. at 2224.

Community Health Services requires that a private party asserting estoppel against the Government demonstrate first “that the traditional elements of an estop-pel are present.” Id. at 61, 104 S.Ct. at 2224. Thus, a party must show that the Government made a misrepresentation upon which the party reasonably relied to its detriment:

“If, at the time when [the party] acted, such party had knowledge of the truth, or had the means by which with reasonable diligence he could acquire the knowledge so that it would be negligence on his part to remain ignorant by not using those means, he cannot claim to have been misled by relying upon the representation. ...”

Id. at 59-60 n. 10, 104 S.Ct. at 2223 n. 10 (quoting 3 J. Pomeroy, Equity Jurisprudence § 810, at 219 (S. Symons ed. 1941)). See generally K. Davis, Administrative Law Treatise ch. 20 (2d ed. 1983) (chapter discussing estoppel, retroactivity, and inconsistency).

While this circuit has occasionally found the Government to be estopped, we have done so only in very limited and unusual circumstances. See Corniel-Rodriguez v. INS, 532 F.2d 301, 307 n. 18 (2d Cir.1976) (“Our holding is limited to the extraordinary circumstances before us.”); Scime v. Bowen, 822 F.2d 7, 9 (2d Cir.1987) (holding that the Government was not estopped when erroneous information was given to claimant by an agent of the Social Security Administration and noting that Comiel-Rodriguez was limited to its facts by Goldberg v. Weinberger, 546 F.2d 477, 481 n. 5 (2d Cir.1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2648, 53 L.Ed.2d 255 (1977)). Although the Corps’ conduct may have been less than exemplary in this case, we hold that there is no estoppel in this case because Boccanfuso could not have reasonably relied on any Government misrepresentation.

The district court found that in June of 1984, Yoder erroneously told Boccanfuso that the Corps’ jurisdiction extended only to the mean high water line and that Yoder gave him permission to place riprap in front of an old seawall in Area # 2. But, as the district court noted, Yoder’s misrepresentation, standing alone, was insufficient to estop the Government. 695 F.Supp. at 698, 699. Indeed, as the district court noted, id. at 699, oral statements by Government employees or agents are not accorded the same weight as written ones, Community Health Servs., 467 U.S. at 65, 104 S.Ct. at 2226; see also Schweiker v. Hansen, 450 U.S. 785, 101 S.Ct. 1468, 67 L.Ed.2d 685 (1981) (per curiam) (rejecting argument that oral misstatement by Social Security official created estoppel).

The district court, considering Yoder’s misrepresentation in combination with other events, found that Boccanfuso’s reliance was reasonable. The other events that the district court considered were Yoder’s granting of permission to place the riprap, the Corps’ acquiescence to the placement of the riprap, and the Corps’ failure timely to respond to the 1986 application. We find, however, that in light of the numerous correct written and oral statements that the Corps made regarding its jurisdiction to both Boccanfuso and Campbell, it was error for the district court to find that Boc-canfuso reasonably relied on Yoder’s oral misstatement.

The record here shows that throughout the course of dealings between the Corps and Boccanfuso, information as to the Corps’ jurisdiction was readily available to Boccanfuso and to Campbell in his capacity as Boccanfuso’s agent. Of particular relevance is the location of the seawall in Area #2, which is quite similar to that of the seawall rejected in 1983. Also, there were many references to the extreme high tide line in the correspondence that the Corps sent to Boccanfuso over the years. A letter dated June 16, 1981, regarding Area # 1 noted that Boccanfuso had placed fill “below the extreme high water line” and ordered him to stop placing fill “seaward of the extreme high tide line.” Letter from Robert J. Desista to Joseph Boccanfuso (June 16, 1981). A subsequent letter addressed the Corps’ “jurisdiction ..., particularly [the Area # 1] construction ... and fill ... below the extreme high waterline.” Letter from Richard Roach to Joseph Boc-canfuso (Nov. 6, 1981). When in 1982 Campbell sought permission to make improvements in Area # 2, the Corps required him to amend his drawing to identify the “high tide line” on the plans, which already showed the mean high water line, and his office added a line annotated as “E.H.T.” When the Corps denied that application in September of 1983, it noted Boccanfuso’s alternative of strengthening the existing structure “above H.T.L.” or “above E.T. L.,” and the Corps ordered him to restore the area by removing the structures and grading and planting “the area from E.H.T. to M.L.W. lines.” Letter from Carl B. Sciple to Joseph A. Boccanfuso (Sept. 29, 1983). A 1984 letter, which acknowledged that the structure in Area # 1 could stay, invited Boccanfuso to file an after-the-fact permit application for two jetties and noted that the plans should show “mean low water (0.0'), mean high water (7.0'), and the high tide line (8.4').” Letter from Richard Roach to Joseph Boccanfuso (July 11, 1984). Thus, Boccanfuso, or Campbell acting on his behalf, had or should have had knowledge of the Corps’ jurisdiction under the Act from prior communications and dealings with the Corps, even if the Corps’ conduct in 1986 left something to be desired.

Although Boccanfuso argues that Yo-der’s granting permission for the placement of riprap in front of an old seawall in Area # 2 in 1984 led him further down the path of reasonable reliance, this claim is unavailing. We have already rejected his claim of reasonable reliance on the misstatement of jurisdiction. It would also have been unreasonable for Boccanfuso to presume that the permission to lay the riprap was a waiver of jurisdiction. The Corps’ regulations permit the maintenance of “currently serviceable structures” without a section 404 permit. 33 C.F.R. § 323.4(a)(2) (1988). That Boccanfuso received specific, written permission from the Corps for the installation of the riprap, see letter from Richard Roach to Joseph Boc-canfuso (July 11, 1984), makes it clear that the Corps did not disclaim regulatory jurisdiction.

Even if we did not find Boccanfuso’s claimed reliance unreasonable, we would reject the district court’s determination that the Corps’ failure timely to process Boccanfuso’s application amounted to affirmative misconduct. Although the district court may have correctly found that the Corps’ unresponsiveness “was unwarranted and a breach of the regulatory process,” Boccanfuso, 693 F.Supp. at 698, the court erred in applying this finding.

The Corps cannot be estopped from enforcing the Act on the ground that it failed to follow the deadlines established by its own regulations. The district court overlooked the distinction between statutorily mandated deadlines and those imposed by the agency’s own regulations. Federal agencies do not lose jurisdiction by their failure to comply with statutory time limits unless the statute demonstrates congressional intent that this result occur, Brock v. Pierce County, 476 U.S. 253, 266, 106 S.Ct. 1834, 1842, 90 L.Ed.2d 248 (1986), and the Court is reluctant to void subsequent agency action when an agency has failed to observe a procedural requirement but important public rights are at stake and less drastic remedies are available, id. at 260, 106 S.Ct. at 1839.

Here, the requirement of timely processing of applications by the Corps is not congressionally mandated. Boccanfuso argues that the Corps violated several of its own deadlines, see 33 C.F.R. § 325.2(a)(1) (Corps shall request more information from applicant within 15 days), id. § 325.2(d)(3) (time limits for evaluation process), id. § 320.1(a)(4) (“timely decision” thought essential), but he cites no statutory basis for these deadlines. This violation of an agency-imposed regulation does not bar the enforcement of the Act. See Bersani v. Deland, 640 F.Supp. 716, 718-19 (D.Mass.1986) (although regulation had time limit, “[n]othing in either the statute or the legislative history even suggests that Congress intended to elevate timeliness over the objectives of the Act with a consequent bar to its enforcement.”).

Further, a less drastic remedy than building the wall was available to Boccanfuso. Under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701 et seq. (1982 & Supp. IV 1986), Boccanfuso could have brought an action in the district court for judicial review of the Corps’ failure timely to process his section 404 permit application. As the Government argues, Boccan-fuso should not be permitted to circumvent the APA and then raise the defense of estoppel.

In sum, because Boccanfuso could not have reasonably relied on any Government misrepresentation as to jurisdiction, we hold that the Government was not estopped as to Area # 2, reverse, and remand to the district court for further proceedings in accordance with this opinion.

Reversed and remanded.