It is the destiny of the Fifth Circuit to be in the middle of great, oftentimes explosive issues of spectacular public importance. So it is here as we enter in depth the contemporary interest in the preservation of our environment. By an injunction requiring the issuance of a permit to fill in eleven acres of tidelands in the beautiful Boca Ciega Bay in the St. Petersburg-Tampa, Florida area for use as a commercial mobile trailer park, the District Judge held that the Secretary of the Army and his functionary, the Chief of Engineers, had no power to consider anything except interference with navigation. There being no such obstruction to navigation, they were ordered to issue a permit even though the permittees acknowledge that "there was evidence before the Corps of Engineers sufficient to justify an administrative agency finding that [the] fill would do damage to the ecology or marine life on the bottom." We hold that nothing in the statutory structure compels the Secretary to close his eyes to all that others see or think they see. The establishment was entitled, if not required, to consider ecological factors and, being persuaded by them, to deny that which might have been granted routinely five, ten, or fifteen years ago before man's explosive increase made all, including Congress, aware of civilization's potential destruction from breathing its own polluted air and drinking its own infected water and the immeasurable loss from a silent-spring-like disturbance of nature's economy. We reverse.

* Genesis: The Beginning

In setting the stage we draw freely on the Government's brief. This suit was instituted by Landholders, Zabel and Russell, on May 10, 1967, to compel the Secretary of the Army to issue a permit to dredge and fill in the navigable waters of Boca Ciega Bay, in Pinellas County near St. Petersburg, Florida. On August 15, 1967, the United States and its officers, Defendants-Appellants, filed a motion to dismiss the suit for lack of jurisdiction which was denied. The United States and other defendants then answered the complaint alleging lack of jurisdiction and that the Court lacks power to compel a discretionary act by the Secretary of the Army. The United States and other defendants moved for summary judgment. Landholders, Zabel and Russell, also moved for summary judgment. After a hearing, the District Court, on February 17, 1969, granted summary judgment for Landholders and directed the Secretary of the Army to issue the permit. It granted a stay of execution of the judgment until this appeal could be heard and decided. We invert the summary judgments, reversing Appellees and rendering judgment for the United States.

Landholders own land riparian to Boca Ciega Bay, and adjacent land underlying the Bay. It is navigable water of the United States on the Gulf side of Pinellas Peninsula, its length being traversed by the Intracoastal Waterway, which enters Tampa Bay from Roca Ciega Bay and is thus an arm of the Gulf of Mexico. The Zabel and Russell property is located about one mile from the Intracoastal Waterway.

Landholders desire to dredge and fill on their property in the Bay for a trailer park, with a bridge or culvert to their adjoining upland. To this purpose they first applied to the state and local authorities for permission to perform the work and obtained the consent or approval of all such agencies having jurisdiction to prohibit the work, namely Pinellas County Water and Navigation Control Authority (which originally rejected permission, but ultimately issued a permit pursuant to state Court order),1 Trustees of the Internal Improvement Fund of the State of Florida, Central and South Florida Flood Control District, and Board of Pilot Commissioners for the Port of St. Petersburg.

Landholders then applied to the Corps of Engineers for a federal permit to perform the dredging and filling. The Pinellas County Water and Navigation Control Authority (which originally rejected permission, but ultimately issued a permit pursuant to state Court order) continued to oppose the work as did the Board of County Commissioners of Pinellas County, who also comprise the Pinellas County Water and Navigation Control Authority, the County Health Board of Pinellas County, the Florida Board of Conservation, and about 700 individuals who filed protests. The United States Fish and Wildlife Service, Department of the Interior, also opposed the dredging and filling because it "would have a distinctly harmful effect on the fish and wildlife resources of Boca Ciega Bay."

A public hearing was held in St. Petersburg in November, 1966, and on December 30, 1966, the District Engineer at Jacksonville, Florida, Colonel Tabb, recommended to his superiors that the application be denied. He said that "The proposed work would have no material adverse effect on navigation"2 but that:

"Careful consideration has been given to the general public interest in this case. The virtually unanimous opposition to the proposed work as expressed in the protests which were received and as exhaustively presented at the public hearing have convinced me that approval of the application would not be in the public interest. The continued opposition of the U.S. Fish & Wildlife Service despite efforts on the part of the applicants to reduce the extent of damage leads me to the conclusion that approval of the work would not be consistent with the intent of Congress as expressed in the Fish & Wildlife Coordination Act, as amended, 12 August 1958. Further, the opposition of the State of Florida and of county authorities as described in paragraph 5 above gives additional support to my conclusion that the work should not be authorized."

The Division Engineer, South Atlantic Division, Atlanta, Georgia, concurred in that recommendation stating: "In view of the wide spread opposition to the proposed work, it is apparent that approval of the application would not be in the public interest." The Chief of Engineers concurred for the same reasons. Finally, the Secretary of the Army denied the application on February 28, 1967, because issuance of the requested permit:

1. Would result in a distinctly harmful effect on the fish and wildlife resources in Boca Ciega Bay,

2. Would be inconsistent with the purposes of the Fish and Wildlife Coordination Act of 1958, as amended (16 U.S.C. 662),

3. Is opposed by the Florida Board of Conservation on behalf of the State of Florida, and by the County Health Board of Pinellas County and the Board of County Commissioners of Pinellas County, and

4. Would be contrary to the public interest.

Landholders then instituted this suit to review the Secretary's determination and for an order compelling him to issue a permit. They urged that the proposed work would not hinder navigation and that the Secretary had no authority to refuse the permit on other grounds. They acknowledged that "there was evidence before the Corps of Engineers sufficient to justify an administrative agency finding that our fill would do damage to the ecology or marine life on the bottom." The Government urged lack of jurisdiction and supported the denial of the permit on authority of § 10 of the Rivers and Harbors Act of March 3, 1899, 30 Stat. 1121, 1151, 33 U.S.C.A. § 403, giving the Secretary discretion to issue permits and on the Fish and Wildlife Coordination Act of March 10, 1934, 48 Stat. 401, as amended, 16 U.S.C.A. §§ 661 and 662(a), requiring the Secretary to consult with the Fish and Wildlife Service and state conservation agencies before issuing a permit to dredge and fill.

The District Court held that it had jurisdiction, that the Fish and Wildlife Coordination Act was not authority for denying the permit, and that:

"The taking, control or limitation in the use of private property interests by an exercise of the police power of the government or the public interest or general welfare should be authorized by legislation which clearly outlines procedure which comports to all constitutional standards. This is not the case here.

As this opinion is being prepared the Congress is in session. Advocates of conservation are both able and effective. The way is open to obtain a remedy for future situations like this one if one is needed and can be legally granted by the Congress."

The Court granted summary judgment for Landholders and directed the Secretary of the Army to issue the permit. This appeal followed.

The question presented to us is whether the Secretary of the Army can refuse to authorize a dredge and fill project in navigable waters for factually substantial ecological reasons even though the project would not interfere with navigation, flood control, or the production of power. To answer this question in the affirmative, we must answer two intermediate questions affirmatively. (1) Does Congress for ecological reasons have the power to prohibit a project on private riparian submerged land in navigable waters? (2) If it does, has Congress committed the power to prohibit to the Secretary of the Army?

The starting point here is the Commerce Clause3 and its expansive reach. The test for determining whether Congress has the power to protect wildlife in navigable waters and thereby to regulate the use of private property for this reason is whether there is a basis for the Congressional judgment that the activity regulated has a substantial effect on interstate commerce. Wickard v. Filburn, 1942, 317 U.S. 111, 125, 63 S. Ct. 82, 89, 87 L. Ed. 122, 135. That this activity meets this test is hardly questioned.4 In this time of awakening to the reality that we cannot continue to despoil our environment and yet exist,5 the nation knows, if Courts do not, that the destruction of fish and wildlife in our estuarine waters does have a substantial, and in some areas a devastating, effect on interstate commerce. Landholders do not contend otherwise. Nor is it challenged that dredge and fill projects are activities which may tend to destroy the ecological balance and thereby affect commerce substantially. Because of these potential effects Congress has the power to regulate such projects.

Landholders do not challenge the existence of power. They argue that Congress in the historic compromise over the oil rich tidelands controversy abandoned its power over other natural resources by the relinquishment to the states in the Submerged Lands Act.6 By it they urge the Government stripped itself of the power to regulate tidelands property except for purposes relating to (i) navigation, (ii) flood control, and (iii) hydroelectric power. This rests on the expressed Congressional reservation of control for these three purposes over the submerged lands, title to and power over which Congress relinquished to the states.7

The argument assumes that when Congress relinquished title to the land and the right and power to manage and use the land, it relinquished its power under the Commerce Clause except in particulars (i), (ii), and (iii). It also assumes that reservation of these three enumerated aspects of the commerce power implied that Congress gave up its plenary power over the myriad other aspects of commerce. See, e. g., Heart of Atlanta Motel, Inc. v. United States, 1964, 379 U.S. 241, 85 S. Ct. 348, 13 L. Ed. 2d 258; Katzenbach v. McClung, 1964, 379 U.S. 294, 85 S. Ct. 377, 13 L. Ed. 2d 290.

A nice argument can be contrived that the net effect of these provisions was to vest in the adjacent states [1] title in these tidelands and their natural resources and [2] [a] the exclusive power to use, exploit and manage these lands [b] only subject to the reserved power of the Federal Government regarding (i) navigation, (ii) flood control, and (iii) production of power. Certainly, this brief synopsis of (1) and (2) (a) is the literal import of § 1311(a) (1) (2). Likewise, the reservation summarized as (2) (b) is literally specified in § 1311 (d). On this approach, the Federal Government turned over to adjacent states the full management and use of the tidelands reserving only those limited powers over commerce comprehended within the three particulars.

But this argument ignores both language found elsewhere and the legislative purpose of the Act. The controversy, often pressed with emotional overtones, was over oil and gas and whether the states were to reap the economic benefits of development royalties and to regulate the exploration and development or whether these benefits and these controls were to be exercised by the Federal Government as an adjunct of then newly declared "paramount rights". United States v. California, 1947, 332 U.S. 804, 805, 68 S. Ct. 20, 21, 92 L. Ed. 382, 383. The Act and this relinquishment reflect the legislative compromise found in the combination of the Submerged Lands Act and the Outer Continental Shelf Act.8 The adjacent states were to be the "owner" of the resources and reap exclusively the economic benefits of resources in the tidelands and have full control over management and exploitation. The Federal Government, on the other hand, was given exclusive ownership and control vis-a-vis the states in the Outer Continental Shelf.

Although it was easy to make this division, the nature of the physical area of the controversy presented immediate operational problems growing out of the water. The Federal Government's traditional concern with navigation, especially on the high seas, its later but then quite extensive concern in flood control, hydroelectric power production, and the frequent combination of both under grandiose projects of a Corps of Engineers, raised specific problems calling for accommodation of the (i) sweeping Federal divesture and (ii) the continued fulfillment of the Federal government's role in these activities. Thus, for example, the states' exclusive right to grant exploration privileges, determine the location and spacing of development wells or drilling platforms posed prospects of maritime hazards. Without imposing its own notions of how development ought to be conducted, restricted, expanded, or controlled, the Federal Government had to have, and reserved expressly this power even to prohibit a drilling rig platform at a particular location. These specific reservations eliminated these frequent and extensive activities as a source of further state versus national controversy.

Whatever remaining doubt there might be on this reading was expressly eliminated by language in § 1314(a) which specifically retains in the Federal Government "all of its * * * rights in and powers of regulation and control of said lands and * * * waters for the constitutional purposes of commerce * * *" 43 U.S.C.A. § 1314(a).9 This section, which encompasses and pervades the entire Act, makes it clear that Congress intended to and did retain all its constitutional powers over commerce and did not relinquish certain portions of the power by specifically reserving others.10

All of this is additionally borne out by the legislative history11 and United States v. Rands, 1967, 389 U.S. 121, 127, 88 S. Ct. 265, 269, 19 L. Ed. 2d 329, 335:

"Finally, respondents urge that the Government's position subverts the policy of the Submerged Lands Act, which confirmed and vested in the States title to the lands beneath navigable waters within their boundaries and to natural resources within such lands and waters, together with the right and power to manage, develop, and use such lands and natural resources. However, reliance on that Act is misplaced, for it expressly recognized that the United States retained all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership * * *. Nothing in the Act was to be construed as the release or relinquishment of any rights of the United States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power. The Act left congressional power over commerce and the dominant navigational servitude of the United States precisely where it found them."

Congress clearly has the power under the Commerce Clause to regulate the use of Landholders' submerged riparian property for conservation purposes and has not given up this power in the Submerged Lands Act.

The action of the Chief of Engineers and the Secretary of the Army under attack rests immediately on the Rivers and Harbors Act, 33 U.S.C.A. § 403, which declares that "the creation of any obstruction * * * to the navigable capacity of any of the waters of the United States is prohibited."12 The Act covers both building of structures and the excavating and filling in navigable waters. It is structured as a flat prohibition unless — the unless being the issuance of approval by the Secretary after recommendation of the Chief of Engineers.13 The Act itself does not put any restrictions on denial of a permit or the reasons why the Secretary may refuse to grant a permit to one seeking to build structures on or dredge and fill his own property. Although the Act has always been read as tempering the outright prohibition by the rule of reason against arbitrary action, the Act does flatly forbid the obstruction. The administrator may grant permission on conditions and conversely deny permission when the situation does not allow for those conditions.

But the statute does not prescribe either generally or specifically what those conditions may be. The question for us is whether under the Act the Secretary may include conservation considerations as conditions to be met to make the proposed project acceptable. Until now there has been no absolute answer to this question. In fact, in most cases under the Rivers and Harbors Act the Courts have been faced only with navigation problems."14 See, e. g., Sanitary Dist. v. United States, 1925, 266 U.S. 405, 45 S. Ct. 176, 69 L. Ed. 352; Wisconsin v. Illinois, 1929, 278 U.S. 367, 49 S. Ct. 163, 73 L. Ed. 426; United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S. Ct. 884, 4 L. Ed. 2d 903.

One very big exception is United States ex rel. Greathouse v. Dern, 1933, 289 U.S. 352, 53 S. Ct. 614, 77 L. Ed. 1250. There petitioners sought a writ of mandamus to compel the Secretary of War and the Chief of Engineers to issue a permit to build a wharf in navigable waters. The Secretary, specifically finding that it would not interfere with navigation, denied the permit. The Supreme Court held that mandamus would not issue because the allowance of mandamus "is controlled by equitable principles * * * and it may be refused for reasons comparable to those which would lead a court of equity, in the exercise of a sound discretion, to withhold its protection of an undoubted legal right." The reason was that the United States had plans to condemn petitioners' land for use as a means of access to a proposed parkway. Allowing a wharf to be built would increase the expense to the government since it would increase the market value of the land and would require the government to pay for tearing down the wharf. The importance of Greathouse is that it recognized that the Corps of Engineers does not have to wear navigational blinders when it considers a permit request. That there must be a reason does not mean that the reason has to be navigability.

Another case holds that the Corps has a duty to consider factors other than navigational. Citizens Committee for the Hudson Valley v. Volpe, S.D.N.Y., 1969, 302 F. Supp. 1083, aff'd., 2 Cir., 1970 425 F.2d 97 [No. 428-33, April 16, 1970]. There the District Court held that the Corps must consider a fill project in the context of the entire expressway project of which it was a part rather than just considering the fill and its effect on navigation. The reasoning was that the approval of the Secretary of Transportation was necessary before a proposed causeway could be constructed. The causeway, along with the fill, was an integral part of the expressway project. However, if the Corps and Secretary of the Army approved the fill and the State completed it, the Secretary of Transportation, considering the enormous expense of the fill, would have no choice, other than approving the causeway. The Army thus had exceeded its authority in approving the fill on only navigational considerations since approval of the fill was effectually approval of the causeway.15

But such circuity is not necessary. Governmental agencies in executing a particular statutory responsibility ordinarily are required to take heed of, sometimes effectuate and other times not thwart other valid statutory governmental policies. And here the government-wide policy of environmental conservation is spectacularly revealed in at least two statutes, The Fish and Wildlife Coordination Act16 and the National Environmental Policy Act of 1969.17

The Fish and Wildlife Coordination Act18 clearly requires the dredging and filling agency (under a governmental permit), whether public or private, to consult with the Fish and Wildlife Service,19 with a view of conservation of wildlife resources. If there be any question as to whether the statute directs the licensing agency (the Corps) to so consult it can quickly be dispelled. Common sense and reason dictate that it would be incongruous for Congress, in light of the fact that it intends conservation to be considered in private dredge and fill operations (as evidenced by the clear wording of the statute), not to direct the only federal agency concerned with licensing such projects both to consult and to take such factors into account.

The second proof that the Secretary is directed and authorized by the Fish and Wildlife Coordination Act to consider conservation is found in the legislative history. The Senate Report on the Fish and Wildlife Coordination Act states:

"Finally, the nursery and feeding grounds of valuable crustaceans, such as shrimp, as well as the young of valuable marine fishes, may be affected by dredging, filling, and diking operations often carried out to improve navigation and provide new industrial or residential land.

* * * * * *

Existing law has questionable application to projects of the Corps of Engineers for the dredging of bays and estuaries for navigation and filling purposes. More seriously, existing law has no application whatsoever to the dredging and filling of bays and estuaries by private interests or other non-Federal entities in navigable waters under permit from the Corps of Engineers. This is a particularly serious deficiency from the standpoint of commercial fishing interests. The dredging of these bays and estuaries along the coastlines to aid navigation and also to provide land fills for real estate and similar developments, both by Federal agencies or other agencies under permit from the Corps of Engineers, has increased tremendously in the last 5 years. Obviously, dredging activity of this sort has a profound disturbing effect on aquatic life, including shrimp and other species of tremendous significance to the commercial fishing industry. The bays, estuaries, and related marsh areas are highly important as spawning and nursery grounds for many commercial species of fish and shellfish."20

S.Rep. No. 1981, 85th Cong.2d Sess. (July 28, 1958). 1958 U.S.Code Cong. & Admin.News, pp. 3446, 3448, 3450. This Report clearly shows that Congress intended the Chief of Engineers and Secretary of the Army to consult with the Fish and Wildlife Service before issuing a permit for a private dredge and fill operation.

This interpretation was judicially accepted in Udall v. FPC:

"Section 2(a), 16 USC § 662(a) provides that an agency evaluating a license under which `the waters of any stream or other body of water are proposed * * * to be impounded first shall consult with the United States Fish and Wildlife Service, Department of the Interior * * * with a view to the conservation of wildlife resources by preventing loss of and damage to such resources * * *.' Certainly the wildlife conservation aspect of the project must be explored and evaluated."

1967, 387 U.S. 428, 443-444, 87 S. Ct. 1712, 1720, 18 L. Ed. 2d 869, 879.

The meaning and application of the Act are also reflected by the actions of the Executive that show the statute authorizes and directs the Secretary to consult with the Fish and Wildlife Service in deciding whether to grant a dredge and fill permit.

In a Memorandum of Understanding21 between the Secretary of the Army and the Secretary of the Interior, it is provided that, upon receipt of an application for a permit to dredge or fill in navigable waters, the District Engineer of the Corps of Engineers concerned is required to send notices to all interested parties, including the appropriate Regional Directors of the Federal Water Pollution Control Administration, the Fish and Wildlife Service, the National Park Service and the appropriate state conservation, resources, and water pollution agencies. The District Engineer is given the initial responsibility of evaluating all relevant factors in reaching a decision as to whether the particular permit involved should be granted or denied. The Memorandum also provides that in case of conflicting views the ultimate decision shall be made by the Secretary of the Army after consultation with the Secretary of the Interior.

This Executive action has almost a virtual legislative imprimatur from the November 1967 Report of the House Committee on Merchant Marine and Fisheries, in reporting favorably on a bill22 to protect estuarine areas which was later enacted into law.23 As a result of the effective operation of the Interdepartmental Memorandum of Understanding, the Interior Department and the Committee concluded that it was not necessary to provide for dual permits from Interior and Army.

The intent of the three branches has been unequivocally expressed: The Secretary must weigh the effect a dredge and fill project will have on conservation before he issues a permit lifting the Congressional ban.

The parallel of momentum as the three branches shape a national policy gets added impetus from the National Environmental Policy Act of 1969, Public Law 91-190, 42 U.S.C.A. §§ 4331-4347. This Act essentially states that every federal agency shall consider ecological factors when dealing with activities which may have an impact on man's environment.24 PAGE CONTAINED FOOTNOTES Although this Congressional command was not in existence at the time the permit in question was denied, the correctness of that decision must be determined by the applicable standards of today. The national policy is set forth in plain terms in § 101 and the disclaimer of § 104(3) neither affects it nor the duty of all departments to consider, consult, collaborate and conclude. For we hold that while it is still the action of the Secretary of the Army on the recommendation of the Chief of Engineers, the Army must consult with, consider and receive, and then evaluate the recommendations of all of these other agencies articulately on all these environmental factors. In rejecting a permit on non-navigational grounds, the Secretary of the Army does not abdicate his sole ultimate responsibility and authority. Rather in weighing the application, the Secretary of the Army is acting under a Congressional mandate to collaborate and consider all of these factors.25

To judge the ebb and flow of the national tide, he can look to the Report of the House Committee on Government Operations. Although this perhaps lacks traditional standing of legislative history, it certainly has relevance somewhat comparable to an Executive Commission Report. On March 17, 1970, it approved and adopted a Report,26 based on a study made by its Conservation and Natural Resources Subcommittee, entitled Our Waters and Wetlands: How the Corps of Engineers Can Help Prevent Their Destruction and Pollution. (H.Rep. No. 91-917, 91st Cong. 2d Sess. (1970)) The first section stifles any doubt as to how this part of Congress construes the Corps' duty under the Rivers and Harbors Act. The section traces the historical interpretation of the Corps' power under the Rivers and Harbors Act. It commends the Corps for recognizing ecological considerations under the Act to protect against unnecessary fills and cites the instant case.27 But following the temper of the times, the report by bold face black type cautions against any easy overconfidence and charges the Corps with ever-increasing vigilance.28

When the House Report and the National Environmental Policy Act of 1969 are considered together with the Fish and Wildlife Coordination Act and its interpretations, there is no doubt that the Secretary can refuse on conservation grounds to grant a permit under the Rivers and Harbors Act.

Landholders next contend that the denial of a permit without a hearing before the Fish and Wildlife Service is a deprivation of property without due process of law. Administrative law requires that before an agency can regulate a party, it must allow that party to be heard. Here, Landholders were given such a hearing before the Corps of Engineers, the body empowered to grant or deny a permit. They were not entitled to a hearing before the Fish and Wildlife Service because it is not "the one who decides." Morgan v. United States, 1935, 289 U.S. 468, 481, 56 S. Ct. 906, 912, 80 L. Ed. 1288, 1295. They were allowed to rebut the findings and conclusions of the Fish and Wildlife Service before the deciding body and thus were not denied due process for lack of a hearing.

Landholders' last contention is that their private submerged property was taken for public use without just compensation. They proceed this way: (i) the denial of a permit constitutes a taking since this is the only use to which the property could be put; (ii) the public use is as a breeding ground for wildlife; and (iii) for that use just compensation is due.

Our discussion of this contention begins and ends with the idea that there is no taking. The waters and underlying land are subject to the paramount servitude in the Federal government which the Submerged Lands Act expressly reserved as an incident of power incident to the Commerce Clause. (See Part II supra).

Landholders' contentions fail on all grounds. The case is reversed and since there are no questions remaining to be resolved by the District Court, judgment is rendered for the Government and the associated agent-defendants.

Reversed and rendered.