Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. S-76-109 -- Robert A. Grant, Judge.
Before Cummings, Circuit Judge, Moore, Senior Circuit Judge,*fn* and Tone, Circuit Judge.
The defendant Donald Byrd appeals from an order granting the plaintiff's (United States) motion for summary judgment and from the judgment thereon, entered on August 11, 1978 in the United States District Court for the Northern District of Indiana, Honorable Robert A. Grant, District Judge, whereby Byrd and two other defendants, who have not appealed, were permanently enjoined "from placing any fill or other material of any kind into the waters or the adjacent or contiguous wetlands of Lake Wawasee, Indiana until such time as a valid Department of Army permit is issued in the discretion of the District Engineer, United States Army Engineer District, Detroit."
Defendant Byrd, a golf professional and a land developer, owns land in Kosciusko County, Indiana which includes a golf course bordering Lake Wawasee in Indiana. The lake is a 2,500 to 3,000 acre fresh water lake used by interstate travelers and seasonal residents for water-related recreational purposes. Prior to June 15, 1976, Byrd and other lakeshore owners engaged in fill projects in an effort to convert the wetlands (swamps) bordering Lake Wawasee into land suitable for residential development. The discharge of fill onto this land was performed without a state water quality certification or a permit from the Army Corps of Engineers (the "Corps").
The Federal Water Pollution Control Act ("FWPCA") makes the discharge into the waters of the United States of any "pollutant", including dredged spoil, rock, sand and cellar dirt, by any person, unlawful, unless permits or other approvals have been obtained. 33 U.S.C. §§ 1311(a), 1362(6) and (7) (1976). Under § 404 of the FWPCA Amendments of 1972, as amended by the Clean Water Act of 1977, 33 U.S.C. § 1344 (1976), the Secretary of the Army was authorized to act through the Chief of Engineers, who, in turn, was authorized to issue permits for the discharge of dredged or filled material into navigable waters under certain conditions and procedures. The Corps planned to assert its new authority in stages.*fn1 In Phase I, which became effective with the issuance of the regulations, the Corps assumed permit authority over all navigable waters traditionally within the Corps' jurisdiction. In Phase II, to be effective on July 1, 1976, the Corps extended its control to other navigable waters newly defined to include intrastate lakes that are utilized by interstate travelers for water-related recreational purposes and freshwater wetlands that are contiguous or adjacent to other navigable waters (including such intrastate lakes) and support freshwater vegetation.*fn2
In the regulations which set forth the phase schedule, the Corps included an exception in the time schedule. The regulation stated that the permit procedure would apply even before a navigable body of water came under the phase program if the District Engineer determined that water quality concerns indicated the need for such action.*fn3 Because Byrd and the other landowners had begun to accelerate their fill projects around Lake Wawasee, the Corps District Engineer held that the cumulative impact of all this activity would threaten the wildlife balance and water quality in the area. Therefore, he accelerated the Corps' jurisdiction over Lake Wawasee and its wetlands. On June 15, 1976, Byrd was advised that no further work could be done on the land fill projects until he obtained a permit from the Corps. On June 24, the Corps officials warned Byrd again and said that if the work continued, they would seek a court order. Byrd, believing that the Corps had no jurisdiction until July 1, again began filling in the land at a faster pace. This action was filed on June 28, 1976, along with a motion for a preliminary injunction. The court granted an Ex parte motion for a temporary restraining order.
At a hearing concerning the preliminary injunction motion on July 6, 1976, the court heard extensive testimony. The hearing lasted a second day and sometime later the court with counsel went to view the Byrd property for itself. In the trial court's view the legal issues were whether Byrd's property was "wetlands" within the meaning of the regulations and whether the Corps had jurisdiction to regulate activity on Lake Wawasee and its wetlands.
The defendants conceded that Lake Wawasee is an intrastate lake over which the Corps could assert jurisdiction. They disputed, however, the claim that the land being filled was "wetlands" within the meaning of the regulation, 33 C.F.R. § 209.120(d)(2)(i)(H ). That regulation defined freshwater wetlands as "areas that are periodically inundated and that are normally characterized by the prevalence of vegetation that requires saturated soil conditions for growth and reproduction. . . ." Apparently no one disputes the fact that some areas of Byrd's land are characterized by the prevalence of vegetation, such as cattails, which requires saturated soil conditions. Byrd claimed that the regulation required proof that the wetlands were inundated by waters From the lake. According to Byrd, his land was higher than the water level and there was a natural barrier that prevented his land from ever being inundated by water from the lake.*fn4
On the basis of the extensive testimony of experts and its own view of the property, the district court resolved this issue against Byrd. The court said that the evidence failed to show that a natural barrier existed. The court further held that the regulation does not require that the land be inundated by water from the lake; water from several sources could be the cause of the inundation. Thus the Byrd property contained contiguous or adjacent wetlands which came within the Corps' regulations. The court also held that the Corps had properly accelerated its jurisdiction to deal with the problem posed by landfill on the shores of Lake Wawasee and that the permit requirement did not constitute an uncompensated "taking" of property in violation of the Fifth Amendment, contrary to what Byrd had argued.
These findings were made in a comprehensive memorandum opinion dated August 13, 1976, wherein the district court granted the motion for a preliminary injunction, an order thereon being entered on November 9, 1976.
On September 23, 1977 the Government filed its motion for summary judgment, asserting that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. The court granted the motion from which plaintiff appeals.
Byrd argues that summary judgment was inappropriate in this case because there was a factual issue with respect to "the extent of the scope of the original injunctive relief granted by this court's order as to defendant's land. . . ." Defendant's Response to Motion for Summary Judgment, App. 39. Essentially, he claims that the court was required to hold a trial to determine the exact location of the regulated wetlands on Byrd's property. In the same vein, he argues that the permanent injunction did not meet the standards of specificity of Fed.R.Civ.P. 65(d). His theory is that the injunction order should refer ...