United States v. Members of the Estate of Boothby

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 93-1784

UNITED STATES OF AMERICA,

Plaintiff, Appellee,

v.

THE MEMBERS OF THE ESTATE OF
LUIS BOOTHBY, ET AL.,

Defendants, Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Jose Antonio Fuste, U.S. District Judge]

Before

Selya, Circuit Judge,

Bownes, Senior Circuit Judge,

and Cyr, Circuit Judge.

Jose Enrique Colon Santana for appellants.

Silvia Carreno Coll, Assistant United States Attorney, with

whom Guillermo Gil, United States Attorney, was on brief, for

appellee.

February 14, 1994

SELYA, Circuit Judge. Is a houseboat a house or a
SELYA, Circuit Judge.

boat? That, in the abstract, is the enigma posed by this case.

Fortunately, we need not answer it directly. As a court of law,

we leave such metaphysical rumination to the disciples of Jacques

Derrida, and address ourselves instead to the more tractable

question of whether the Army Corps of Engineers (the Corps)

properly deemed two particular houseboats to be permanently

moored structures within the meaning of section 10 of the Rivers

and Harbors Act, 33 U.S.C. 403 (1988). The district court

ruled that the Corps did not act arbitrarily or capriciously

either in subjecting the houseboats to the permitting

requirements of section 10 or in refusing to issue permits. We

affirm.

I

La Parguera is a bay in Puerto Rico acknowledged by all

interested agencies and groups to have great beauty and

ecological value. To slow deterioration of the environment,

Puerto Rico and the Corps signed a joint memorandum of

understanding (the J-Mem) in 1978. Among other things, execution

of the J-Mem brought a screeching halt to construction of

stilthouses along the shore.

There are, of course, several ways to skin a cat or,

more to the point, to provide lodging in a picturesque setting.

Thus, after the moratorium on new construction took effect,

numerous houseboats sprouted in the bay. In 1987, the Corps

informed the owners of these houseboats that they were subject to

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the permitting requirements of section 10. Some houseboat

owners, including the appellants, applied for after-the-fact

permits, but their applications were denied. On June 5, 1990,

the Corps issued a final order directing all remaining houseboats

to move.1

As a test case to establish its authority, the

government brought suit to enforce the denial of permits to four

houseboat owners. It prevailed below. See United States v. Seda

Perez, 825 F. Supp. 447 (D.P.R. 1993). Two of the four houseboat

owners, Pedro Monzon and the estate of Luis Boothby, prosecute

this appeal.

II

Section 10 of the Rivers and Harbors Act, 33 U.S.C.

403, outlaws any unauthorized "obstruction" to the navigable

capacity of the waters of the United States.2 Its second clause

1Appellants failed to seek direct review of this order in a
timely fashion. Yet they seek review indirectly, for they are
resisting the agency's effort to obtain a determination of legal
enforceability by arguing that the agency lacked jurisdiction
over their vessels. Notwithstanding this odd procedural
configuration, we think that appellants can assert their claim.
Although exhaustion of administrative remedies is often a
prerequisite to judicial review of administrative action,
jurisdictional questions are generally not waived, because an
action taken by an agency lacking jurisdiction is a nullity. See

Manual Enterprises v. Day, 370 U.S. 478, 499 n.5 (1962).

2The statute provides in pertinent part:

The creation of any obstruction not
affirmatively authorized by Congress, to the
navigable capacity of any of the waters of
the United States is prohibited; and it shall
not be lawful to build or commence the
building of any wharf, pier, dolphin, boom,
weir, breakwater, bulkhead, jetty, or other

3

contains a long, non-exclusive enumeration of things that are

presumed to constitute obstructions. See United States v.

Republic Steel Corp., 362 U.S. 482, 486-87 (1960); Sierra Club v.

Andrus, 610 F.2d 581, 594-97 (9th Cir. 1979), rev'd on other

grounds, 451 U.S. 287 (1981). The statutory list casts a very

wide net. Included in this list is the term "other structures"

a term defined in the Corps' regulations to cover a "permanent

mooring structure." 33 C.F.R. 322.2(b) (1993). We believe

that this regulation lawfully can be applied to houseboats that

are found to constitute permanently moored vessels. At least two

courts agree. See United States v. Boyden, 696 F.2d 685, 687

(9th Cir. 1983); United States v. Oak Beach Inn Corp., 744 F.

Supp. 439, 444 (S.D.N.Y. 1990).

III

The standards of review are stringent, and present high

hurdles to parties challenging fact-based decisions of an

administrative agency. In scrutinizing administrative action, a

reviewing court is free to correct errors of law, but, otherwise,

the court is limited to a search for arbitrary or capricious

behavior. See 5 U.S.C. 706(2)(A); see also Town of Norfolk v.

U.S. Army Corps of Engineers, 968 F.2d 1438, 1445-46 (1st Cir.

1992); United States v. Cannons Engineering Corp., 899 F.2d 79,

structures in any port, roadstead, haven,
harbor, canal, navigable river, or other
water of the United States, outside
established harbor lines, or where no harbor
lines have been established, except on plans
recommended by the Chief of Engineers and
authorized by the Secretary of the Army . . .
.

33 U.S.C. 403 (1988).

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84 (1st Cir. 1990). In this search, courts are directed to defer

heavily to the agency within the agency's sphere of expertise.

See Chevron USA v. Natural Resources Defense Council, 467 U.S.

837, 842-45 (1984).

When, as now, a district court, after itself taking

evidence, upholds agency action, the hurdle is higher still;

factbound determinations of the district court are reviewable

only for clear error. See, e.g., Roland M. v. Concord Sch.

Comm., 910 F.2d 983, 990 (1st Cir. 1990), cert. denied, 499 U.S.

912 (1991). That precept has particular pertinence here, for

there is no doubt that the salient determinations in this case

are fact-intensive. See Boyden, 696 F.2d at 688-89

(characterizing the question of whether certain houseboats are

"permanent mooring structures" as one of fact); Oak Beach, 744 F.

Supp. at 444 (same).3

IV

Appellants' depth charges are aimed, in the main, at

the district court's finding that their houseboats should be

3To be sure, the Fifth Circuit has suggested that "the
imprecise statutory language of section 10 leaves the Corps with
quasi-legal authority to determine what `effects' constitute

`obstructions.'" Vieux Carre Property Owners v. Brown, 875 F.2d

453, 463 (5th Cir. 1989) (emphasis supplied), cert. denied, 493

U.S. 1020 (1990). But this suggestion, even if carried to its
logical extreme, does not militate in favor of a less deferential
standard of review. While the key statutory findings are best
viewed as mixed questions of law and fact, they are fact-
intensive and, therefore, at least in this circuit, they are
subject to clear-error review. See In re Howard, 996 F.2d 1320,

1328 (1st Cir. 1993) (explaining that, if mixed fact-law
questions are fact-dominated, they are ordinarily subject to
review under the clearly erroneous standard); Roland M., 910 F.2d

at 990-91 (similar).

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considered as stationary structures. Much of this bombardment

targets the court's subsidiary finding that the houseboats'

"seaworthiness is doubtful, to say the least." Seda Perez, 825

F. Supp. at 452. Appellants argue that the Corps' inspector was

not competent to make an evaluation of navigability, and that the

Corps itself erred in allowing environmental factors and other

impermissible considerations to enter the decisional calculus.

They also argue that the record as a whole cannot support a

finding of doubtful navigability -- stressing that the houseboats

were certified as navigable by the Puerto Rico Department of

Natural Resources (DNR), that the houseboats had acquired the

requisite nautical accoutrements, and that the houseboats

occasionally raised anchor and cruised the bay.

Because we are in substantial agreement with the lower

court and see no profit in trolling the same waters, we do not

wax longiloquent. In our view, three decurtate observations,

largely evocative of the district court's reasoning, place the

assigned errors into bold relief and demonstrate that appellants'

depth charges miss the mark.

First: Navigability does not have the same meaning for
First:

all purposes; hence, the DNR's determination of navigability, in

a markedly different context, cannot be accorded decretory

significance with regard to the Corps' permitting process. The

district court was free to consider, and, ultimately, to rely

upon, the contrary evidence before it.

Appellants contest this point both in the abstract and

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in the particular. They save their loudest outcry for the

district court's acceptance of the opinion testimony offered by a

Corps official lacking specialized nautical training. We are

unimpressed with this line of argument. Under the Federal Rules

of Evidence, a trial judge has broad latitude in determining

whether a proffered expert has suitable qualifications to give

opinion testimony relating to a given topic. See United States

v. Ladd, 885 F.2d 954, 959-60 (1st Cir. 1991); Marshall v. Perez-

Arzuaga, 828 F.2d 845, 851 (1st Cir. 1987), cert. denied, 484

U.S. 1065 (1988). And, moreover, a witness need not always

possess a particular degree or set of educational qualifications

in order to offer opinion testimony. See, e.g., United States v.

Hoffman, 832 F.2d 1299, 1310 (1st Cir. 1987) (witness with

"extensive practical experience in the field" allowed to testify

as an expert despite lack of "formal schooling"); Marshall, 828

F.2d at 851 (similar); Grain Dealers Mut. Ins. Co. v. Farmers

Union Coop. Elevator & Shipping Ass'n, 377 F.2d 672, 679 (10th

Cir. 1967) (similar); see also Fed. R. Evid. 702. Given this

flexible standard, we cannot fault the district court for

electing to credit the opinion of a Corps official familiar with

both the Corps' regulations and the vessels at issue. Such a

person is highly qualified to testify regarding the application

of those regulations to those vessels, even if she is not a naval

architect. See Boyden, 696 F.2d at 688.

It is also appropriate to note that the district court

did not embrace this testimony in a vacuum. The district judge

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also drew on testimony from a court-appointed expert, whose

qualifications have not been assailed, as well as on the

photographs and other documentary evidence. We, ourselves, have

reviewed the administrative record, the trial transcript, and the

exhibits. Notwithstanding the DNR certification, we think that

the subsidiary finding of doubtful navigability is amply

supported, and that the district court's conclusions respond to

the weight of the evidence. Because we are not left with a

"strong, unyielding belief that a mistake has been committed,"

Cumpiano v. Banco Santander, 902 F.2d 148, 152 (1st Cir. 1990)

(outlining test for clear error), we uphold the finding that the

houseboats were of dubious seaworthiness.

Second: Appellants berate the district court for
Second:

considering motive, intent, and environmental factors, rather

than limiting its inquiry strictly to capacity to navigate. But

navigability is only one element in the statutory assessment.

Since neither the statute nor the regulations place restrictions

on the Corps' discretion to issue permits, see Di Vosta Rental,

Inc. v. Lee, 488 F.2d 674, 677 (5th Cir. 1973), cert. denied, 416

U.S. 984 (1974), the agency was fully entitled to take into

account other pertinent factors.

We are confident that, under this standard, motive and

consequence qualify. And we hasten to add that the district

court's findings as to appellants' motives are solidly rooted in

the record. In sum, the court spotted a pattern of deceit: the

houseboats were put in place to circumvent the ban on

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stilthouses; they were primarily intended to serve as vacation

homes, pure and simple; the gadgets attached to them over time

were meant to camouflage the scheme rather than for seafaring per

se; and the occasional jaunts about the bay represented

perfunctory attempts to satisfy the terms of the statute. See

Seda-Perez, 825 F. Supp. at 449 n.2, 451-52. Taking these facts

as warrantably found by the trier, one can hardly fault agency

officials for being concerned more with intent to navigate than

with capacity to navigate. After all, if an owner does not

intend to cast off, his or her vessel can be said to be

"permanently moored" in the relevant sense, notwithstanding the

theoretical possibility that the craft is capable of navigation.

Nor can the agency's attention to the impact of the

houseboats on the ecosystem of La Parguera be faulted. Agency

officials understood what appellants evidently do not: that the

Rivers and Harbors Act has been transformed into an instrument of

environmental policy. This transformation occurred long ago.

Indeed, Justice Douglas could hardly have been more plain: the

Act must be read "charitably," with full consideration for the

public purposes to be served. Republic Steel, 362 U.S. at 491;

see also United States v. Standard Oil Co., 384 U.S. 224, 225-26

(1966) (justifying expansive reading of section 13 of the Act).

The Court expressly forbade "a narrow, cramped reading" of

section 10, Republic Steel, 362 U.S. at 491, because "[a] river

is more than an amenity, it is a treasure," id. (quoting New

Jersey v. New York, 283 U.S. 336, 342 (1931) (Holmes, J.)).

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In recognition of the evolution of the Act, the Corps'

general policies for evaluating permit applications, which were

scrupulously applied in this case, are dominated by ecological

concerns. See 33 C.F.R. 320.4 (1993). These concerns do no

violence to the statutory language. They are rationally related

to the goals of the Act. Consequently, they may, and should,

drive policy. In arguing to the contrary, appellants' counsel

has missed the boat.

Third: In any event, the finding that the houseboats
Third:

constitute "structures" is not necessary to the ultimate

determination that the houseboats constitute "obstructions."

Section 10's permitting requirements may be triggered by

something other than those items enumerated in the second clause

of the section, if that "something" plausibly can be deemed an

obstruction to navigation. See supra pp. 3-4 & n.2. With this

in mind, the district court made an alternative, independent

finding that the houseboats, regardless of whether they were

permanently moored structures, nonetheless obstructed navigation.

See Seda Perez, 825 F. Supp at 452.

We agree fully with the district court's legal

analysis, and we are unable to say that its underlying finding of

fact is clearly erroneous. Nevertheless, we choose to affirm on

the court's primary ground of decision that the houseboats in

this instance constituted structures rather than explore here

the limits of what constitutes an obstruction outside the list of

presumptive obstructions contained in the statute itself.

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Although we take the Court's lead in construing the Rivers and

Harbors Act in spirit with the times, we remain wary of the

danger that it might be construed so broadly as to criminalize

the dumping of tap water, see Standard Oil, 384 U.S. at 234

(Harlan, J., dissenting).

V

We need go no further.4 Appellants have failed to

find a route to safe harbor. Thus, the order and judgment of the

district court enforcing the agency's eviction order must be

Affirmed. Costs to appellee.

4Because an appellate court is not obliged to consider
arguments presented in a perfunctory manner, see Ryan v. Royal

Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990), we do not probe

appellants' plausible, but undeveloped, suggestion that the
injunction issued below is overbroad to the extent that it
encompasses a matter of state law not raised in the pleadings.
At any rate, amending the injunction to delete the state-law
reference would make no practical difference except in the
unlikely event of a major policy shift by the Corps. The
district court can, of course, revisit this aspect of the matter
if circumstances change or if for any other reason it chooses to
do so.

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