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AMERICAN DREDGING CO. v. DUTCHYSHYN

February 13, 1979

AMERICAN DREDGING COMPANY
v.
Harry V. DUTCHYSHYN, District Engineer, Philadelphia District U. S. Army Corps of Engineers



The opinion of the court was delivered by: VANARTSDALEN

OPINION AND ORDER

Pursuant to Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. ยง 403, the defendant, on behalf of the United States Army, Corps of Engineers, issued a "temporary" permit to plaintiff to operate a rehandling basin for dredged material in an area of the Delaware River designated as "Klondike Ditch." The permit expressly provided that it could be modified, suspended or revoked when such was determined to be in the public interest. On February 1, 1977 after notice to plaintiff, the permit was modified so as to preclude plaintiff from depositing dredged material from the rehandling basin onto an area of 521 acres of land owned by plaintiff and adjoining the rehandling basin. Plaintiff seeks to invalidate the modification of the permit, contending that such modification was a taking of plaintiff's private property without just compensation in violation of the fifth amendment to the United States Constitution. The injunctive relief sought will be denied and judgment will be entered in favor of the defendant.

 Plaintiff, as part of its regular business, by contract with the federal government maintains the shipping channels of certain sections of the Delaware River, by dredging operations. Plaintiff also does dredging for private businesses along the Delaware River. Essential to the dredging is disposal of the dredged material or spoil. Over a period of years, plaintiff acquired, at substantial capital outlay, tracts of land along the Delaware River for the express purpose of filling the tracts with the dredged material. In the immediate area of the Klondike Ditch, plaintiff owns approximately 2500 acres of land, of which the 521 acres involved in this action are a contiguous part. The 521 acres has little or no economic or market value in its present state except as a disposal site for dredge spoil.

 Prior to the issuance in August 15, 1973, of the "temporary" permit, plaintiff had applied to the Corps of Engineers for a permit to operate a permanent rehandling basin in a location designated as "White's Basin", that is near to Klondike Ditch. The White's Basin application remains pending. Defendant contends that plaintiff has failed to supply essential information necessary to complete the required environmental impact study. Plaintiff disputes this contention, but resolution of that issue is not relevant to the present controversy. While the White's Basin application was pending, defendant issued the so-called temporary permit to operate in the Klondike Ditch. The permit, by its express terms, will terminate on December 31, 1983 unless earlier revoked or expressly extended.

 The right to modify the permit was set forth in the following language:

 
This permit may be modified, suspended or revoked by authority of the Secretary of the Army if the Secretary determines that, under the existing circumstances, such action is required in the public interest or if the permittee fails to comply with any of its provisions.
 
A judgment as to whether or not suspension, modification or revocation is in the public interest involves a consideration of the impact that any such action or the absence of any such action may have on factors affecting the public interest. Such factors include, but are not limited to navigation, fish and wildlife, water quality, economics, conservation, aesthetics, recreation, water supply, flood damage prevention, ecosystems, and, in general the needs and welfare of the people.

 Subsequent to the final determination in Civil Action 74-2943, defendant by notice of February 1, 1977 modified the permit whereby the 521 acres were prohibited from receiving the dredge spoil from the Klondike Ditch. Plaintiff promptly thereafter filed the present action seeking injunctive relief from the restrictions imposed by the modification.

 By stipulation of counsel, at the trial, the entire transcript of Civil Action 74-2943 was received in evidence. The findings of fact and conclusions of law filed by me in Civil Action 74-2943 are likewise incorporated herein by reference and are to be deemed findings of fact and conclusions of law in this case. In addition any facts stated or conclusions heretofore or hereafter set forth in this opinion shall be deemed to be findings of fact and conclusions of law.

 A rehandling basin is an area utilized for temporarily depositing dredge spoil and thereafter removing it from the river. Scows, carrying dredge spoil, are towed to the rehandling area, which is usually a dredged hole or excavation in and along the edge of the river. The scows dump their cargo into the basin. From there, either by dredges, pumps and pipes, or by mechanical excavating machinery, the loose spoil is transported to some other place, ordinarily to closely adjoining low-lying land or shallow water where it is permanently deposited as fill.

 The 521 acres in question was acquired by plaintiff by various purchases between 1961 and 1974, at a total purchase price of $ 622,170.00. What portions were purchased before, and what portions after the grant of the permit on August 1, 1973, does not appear of record. There were additional costs of $ 396,629 in clearing and diking the land so as to be able to receive and hold the spoil. Thus, the total capital outlay by plaintiff exceeded $ 1,000,000.00. The land is zoned for "riverfront industrial." Annual taxes are $ 25,000.00. The land was purchased for the sole purpose of receiving the spoil and the land has no other present potential use to plaintiff. In its present state and subject to the prohibition against filling the land, it is of little or no market value.

 Plaintiff, at the trial on the merits, defined the "ultimate issue" to be

 
whether or not the regulation by the District Engineer which prohibited our using those areas for fill amounted to a taking of our private property for ...

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