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LESLIE SALT CO. v. UNITED STATES

December 31, 1991

LESLIE SALT CO., a Delaware corporation, Plaintiff,
v.
THE UNITED STATES OF AMERICA, et al., Defendants.



The opinion of the court was delivered by: CHARLES A. LEGGE

ORDER OF DISMISSAL

 Defendants move for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure, asking that the action be dismissed for lack of subject matter jurisdiction. The contention is that United States District Courts do not have jurisdiction to resolve the issue of the application of the Clean Water Act, 33 U.S.C. § 1251 et seq., to specific property when the only administrative action has been the issuance of a cease and desist order to the landowner by the United States Army Corps of Engineers. The motion poses current and troublesome questions regarding the jurisdiction of the district court and of the Corps.

 I.

 The Corps issued two cease and desist orders directing plaintiff to terminate certain activities on an eighty-nine acre tract of land which it owns. The cease and desist orders were issued under the authority of section 404 of the Clean Water Act, 33 U.S.C. § 1344.

 Leslie then filed this action challenging the Corps' assertion of jurisdiction over the property under the Act. The action was stayed for a considerable period of time, pending the conclusion of other litigation between Leslie and the Corps involving different property. Defendants then filed this motion for judgment on the pleadings, which is opposed by plaintiff, and the issue of jurisdiction is now before this court. The basic question is when the Corps' actions under the Act with respect to a parcel of property have reached the point where the issue of the application of the Act to the property can be made by a district court.

 II.

 This case is another battle in the continuing war between Leslie and the Corps over substantial acreage which Leslie owns in the San Francisco Bay Area. Prior battles have been the subject of published opinions, both by this court and by the United States Court of Appeals for the Ninth Circuit. Several of those cases have involved questions of the jurisdiction of district courts vis a vis the Corps, and some have proceeded under the assumption, without discussion of the issue, of the district court having jurisdiction. A brief review of that history is helpful to identify and illuminate the jurisdictional dispute in the present motion:

 In 1976, this court ruled on a summary judgment motion, in a dispute which involved Leslie and the Corps, under the Rivers and Harbors Act and the Federal Water Pollution Control Act. Sierra Club v. Leslie Salt, 412 F. Supp. 1096 (N.D. Cal. 1976). As a part of that action Leslie sued the Corps, contending that the Corps did not have jurisdiction over some of the property. Apparently the Corps did not raise the issue of the jurisdiction of the district court, and the court resolved the dispute on its merits. That action was appealed to the Ninth Circuit and a reported decision, Leslie Salt Co. v. Froehlke, 578 F.2d 742 (9th Cir. 1978), reversed and modified the district court's decision. Again, the court of appeals did not discuss whether the district court had jurisdiction to resolve the dispute initially, but instead resolved the case on its merits.

 The issue of jurisdiction indirectly came before this court in Leslie Salt Co. v. United States, 660 F. Supp. 183 (N.D. Cal. 1987). The Corps issued cease and desist orders, and Leslie filed the action to contest the jurisdiction of the Act. The United States made a motion for bifurcation and stay. But as explained in that opinion, the central issue in the motion was whether the district court or the Corps was the the Corps was the proper body to determine initially whether the land was subject to the jurisdiction of the Act. This court concluded that when "a landowner brings an action to challenge the jurisdiction of the Corps, or the Corps brings an enforcement action which raises the issue of jurisdiction over the lands," the decision on jurisdiction is to be made by the district court in a plenary trial and not by the Corps in an administrative proceeding. Id. at 185. However, in that case the Corps mooted the issue involved in the present motion by filing its own enforcement action which was consolidated with Leslie's action.

 The United States did not appeal that decision. The case was then tried on the merits, and is reported in Leslie Salt Co. v. United States, 700 F. Supp. 476 (N.D. Cal. 1988), rev'd on other grounds, 896 F.2d 354 (9th Cir. 1990), cert. denied, 112 L. Ed. 2d 1194, 111 S. Ct. 1089 (1991). This court discussed jurisdiction and restated its conclusion that the issue of jurisdiction over property under the Clean Water Act is to be determined in a plenary suit in district court. Id. at 477-78.

 Again the United States did not appeal that restatement of district court jurisdiction. And the opinion of Court of Appeals in the appeal on the merits, Leslie Salt Co. v. United States, 896 F.2d 354 (9th Cir. 1990) did not discuss the jurisdiction of the district court vis a vis the jurisdiction of the Corps.

 Other litigation in this circuit has also proceeded on the assumption that a district court's jurisdiction could be invoked upon the Corps' issuance of a cease and desist order. Swanson v. United States, 600 F. Supp. 802 (D. Idaho 1985), litigation under the Rivers and Harbors Act and the Clean Water Act, began when the Corps issued a cease and desist order. The landowner then filed suit. The district court held that the Corps had made its jurisdictional decision when it sent the cease and desist order, and concluded that the landowner could then proceed in the district court. The district court's decision on the merits was affirmed in 789 F.2d 1368 (9th Cir. 1986), but with no discussion of the jurisdictional question.

 That history of litigation in this circuit would appear to establish that a district court has jurisdiction to resolve the application of the Clean Water Act to a parcel of property once the Corps issues a cease and desist order and the landowner files suit. However, the issue has not been expressly discussed by the courts ...


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