Laying the Foundation for Sophisticated
Environmental Strategies:

A Florida Case Study

Joseph W. Little*

Long has Florida's boom been driven by the lure and beauty of
its coasts and wetlands and the abundant marine life that they
support. If Florida busts, it will be because these values were ex-
ploited beyond their endurance by human greed. Today in Florida
two potentially explosive controversies are brewing. One has to
do with drilling for oil off Gulf and Atlantic beaches. The other
has to do with an unprecedented population expansion that threat-
ens to overwhelm the state's beaches and wetlands with equally
unprecedented developments. All over Florida opposing forces are
joining issue in many fora. Nevertheless, most of the open talk is
about how to do something to change present trends and protect
those aspects of the state that make it a desirable place to be.
Doing so will require more restrictions on the use of privately held
lands than the state has exercised before.

In the main it is now clear that either one or both of two basic
routes must be followed to increase the scope of existing environ-
mental protections. The first approach is litigation on the basis of
some theory of public interest or public right vis-A-vis the develop-
ment rights of private persons that happen to hold legal title to
environmentally important lands at the time it becomes profitable
to develop them. Presently, in Florida two suits are being pressed
with the avowed purpose of claiming prescriptive rights' for the
public in the sandy portion of Florida's beaches that lies shoreward

* Professor, University of Florida College of Law.

1. Prescription has been defined as "the effect of lapse of time in creating or
extinguishing property interests." These interests are created by "such use of land,
for the period of prescription, as would be privileged if an [interest] existed, pro-
vided the use is (1) adverse, and (2) for the period of prescription, continuous
and uninterrupted." 3 Powell on Real Property 413 (1966) (quoting Restatement,
Property).



1974] Foundation for Sophisticated Environmental Strategies 111

of mean high tide and the title of which is vested in private owner-
ship. City of Daytona Beach v. Tona Rama, Inc.,2 an east coast
action brought by taxpayers and Florida's attorney general, has
been successful in asserting prescriptive rights where the public
has gained an easement by virtue of the prevailing prescriptive
law. Although the court discussed far-reaching new theories of
public dominion in beaches purportedly prevailing in California
and Oregon,3 it carefully noted that in Florida, at least, "[N]ot all
use of beaches or shorelines gives rise to a prescriptive easement." 4

Nevertheless, the court upheld an order to remove a structure that
interferes with the public use of the portion of the beach impressed
with the prescriptive easement. The case now resides in the su-
preme court of Florida for clarification.

Pursuing the same point in a west coast suit against a United
States Steel Corporation development, a citizens' group was denied
standing to litigate in the public interest because the members al-
leged no special rights beyond those enjoyed by the public at large.
Reversing earlier "archaic" decisions, a Florida district court of
appeals ruled that "a bona fide non-profit organization may sue
for and on behalf of some or all of its members who have been
or will be directly and personally aggrieved in some manner re-
lating to and within the scope of interests represented and advanced
by such organizations."' The case was remanded for trial under
the Tona Rama theory of prescriptive easement. If these successes
are sustained in the supreme court, then the judicial process of
itself will have been employed successfully in expanding the reach
of a judicial rule of law that the public has a protectable interest
in maintaining irreplaceable natural amenities that some private
person happens to have title to.6 Such an expanded realization

2. City of Daytona Beach v. Tona Rama, Inc., 271 So. 2d 765 (Fla. App. 1972),
rev'd, 294 So. 2d 73 (1974).

3. Gion v. Santa Cruz, 2 Cal. 2d 29, 465 P.2d 50, 84 Cal. Rptr. 162 (1970);
State ex rel. Thornton v. Hog, 254 Or. 584, 462 P.2d 671 (1969).

4. City of Daytona Beach v. Tona Rama, Inc., 271 So. 2d 765 (Fla. App. 1972),
rev'd, 294 So. 2d 73 (1974).

5. Save Sand Key, Inc. v. U.S. Steel Corp., 281 So. 2d 572 (Fla. App. 1973),
rev'd, - So. 2d - (1974).

6. Both the cases were acted upon by the Florida supreme court while this
article was being prepared for publication. In its rulings the court severely blunted
the progress made by the district courts of appeal. While the supreme court in
City of Daytona Beach v. Tona Rama, Inc., 294 So. 2d 73 (1974), rev'g 271 So. 2d
765 (Fla. App. 1972), did acknowledge the power of the public to obtain prescrip-



112 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 110

attained in one day will serve as the foundation of the next, much
as one year's growth of a tree supports the larger concentric circle
laid down in succeeding growing seasons.

The second approach to increasing the scope of protective regu-
lations is through legislation. While judicial theories can be en-
larged and newly applied to novel situations, the pace of movement
is slow and always reactive. Moreover, only through legislation can
affirmative rather than negative burdens be placed upon the be-
havior that is sought to be controlled. In wetlands protection, for
example, positive control could be achieved through a compre-
hensive permit system that would be completely unworkable as a
judicially created procedure.

Great pressures are building in Florida to develop comprehen-
sive wetlands protection legislation. This is in recognition of the
vital importance of wetlands to the stateT and of the realization
that existing modes of judicial and legislative controls do not ade-
quately protect wetlands, particularly those lying under non-navi-
gable waters and those lying above the line of the mean high
water.' Proponents of wetlands control legislation are working hard
to encourage the legislature to act quickly. In March of 1973 the
Florida Defenders of the Environment, a citizen action group,
recommended that the State of Florida "prohibit incompatible de-

tive rights in privately owned portions of dry sandy beaches, the court held in that
instance that the public's use had not been adverse to the owner's interest. Therefore,
no easement had been perfected. Moreover, even if such an easement had been ob-
tained, "the erection of the sky tower was consistent with the recreational use of
the land by the public and could not interfere with the exercise of any easement
the public may have acquired by prescription .... ." So in a stroke, the Florida
supreme court dashed the hopes of protecting the state's beaches against further
intrusions and destruction by unprincipled developments.

Having in Tona Rama undermined the substantive interests of the public in beach
property that had been recognized by the lower appellate court, the Florida su-
preme court "resolutely" adhered to the special injury criterion in determining
standing in United States Steel v. Save Sand Key, Inc., - So. 2d - (1974), rev'g
281 So. 2d 572 (Fla. App. 1973). Thus, in Florida the newly-won right of citizen
groups to represent the public's interest in environmental and consumer litigation
was quashed in its infancy. Apparently, the old public nuisance requirement of
showing a special injury different from that suffered by the public at large will be
the test each public interest litigant must satisfy.

7. See, e.g., J. Gosselink, et al., The Value of the Tidal Marsh, Report of the
Urban and Regional Development Center, University of Florida, May 1973.

8. These include dunes, which are a vital element in a beach system. See R.
Dolan, et al., Man's Impact on The Barrier Islands of North Carolina, 61 AMERICAN
SCIENTIST 152 (1973).



1974] Foundation for Sophisticated Environmental Strategies 113

velopment in certain environmentally sensitive areas,"9 including
especially wetlands. Then in September of 1973 the Florida Wild-
life Federation called together leaders from across the state to
study wetlands protective legislation. That conference concluded
that "it should be the declared policy of this State to protect our
wetlands, to prevent their despoliation and destruction, to encour-
age their restoration and to manage their economic uses in a man-
ner consistent with preserving the integrity of wetlands."'0 Follow-
ing on the heels of these recommendations, the Governor of Florida
convened a growth conference in October, which also called for
comprehensive wetlands protection legislation." It is extremely
important that each of the bodies issuing these statements saw
wetlands as a resource of the state, and not just as pieces of land
that somehow relate to government.

These policy pronouncements are not without opponents. De-
velopers, the land sales industry, and some land owners are much
threatened by them and will set up a hue and cry of confiscation
in the legislature. Plainly, a great many scientists12 believe the
public interest requires the total preservation of most remaining
wetlands, salt and fresh, whether they are in private or public
hands and whether or not some historic sovereign servitude at-
taches. They believe these lands are necessary to provide areas
of ground water recharge, natural filtration and purification sys-
tems, flood control buffers, and nursery areas for most of the crea-
tures in the seas.

The central issue in the coming struggle over wetlands protec-
tion is whether the public interest supports the exercise of the
state's police powers in regulating uses of wetlands to the extent
in some instances of prohibiting uses other than those that do not
disturb the natural systems. Assuming the legislature believes that
it has the power and so exercises it, the issue will then shift to the

9. Consequences of Growth in Florida, Florida Defender of the Environment
Conference Report, March 31, 1973.

10. A Statement on Wetlands Protection, Florida Wildlife Federation Wetlands
Legislative Conference, September 6-8, 1973.

11. Policy Statement, Florida 2000: Governor's Conference on Growth and the
Environment, Kissimee, Florida, October 13, 1973.

12. Every statement was supported by panels of recognized natural and physical
scientists from across the state. See generally J. Gosselink, et al., The Value of the
Tidal Marsh, supra note 7.



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

courts. Although the number of states13 enacting comprehensive
wetlands legislation is fast expanding and some recent cases' 4 have
upheld application of these laws, the historic trend of Florida
courts has been to find an invalid taking when lands were zoned
to preclude every economic use."5 While those cases can be dis-
tinguished in respect to the nature and purpose of the regulations
involved,'" it is not the job of this article to make those arguments.
Nevertheless, in passing over this vital point, it is worth noting
that a recent comprehensive study of the "taking" cases concluded,
in part, that:

There is little historic basis for the idea that a regulation of
the use of lands can constitute a taking of the land . . . [and]
the most recent court decisions, those of the '70's, strongly sup-
port land use regulations based on overall state or regional
goals .... 17

13. Among important wetlands statutes are the following: CAL. GOV'T CODE, §§

66600-66661 (West Supp. 1972); CONN. GEN. STAT. ANN., §§ 22a-28 to 22a-45
(Supp. 1973); GA. CODE ANN., §§ 45-136 to 45-147 (Supp. 1972); ME. REV. STAT.
ANN., tit. 12, §§ 4701-4709 (Supp. 1972); MD. ANN. CODE, art. 66C, §§ 718-731
(Supp. 1972); MASS. LAWS ANN., ch. 130 §§ 27A, 40A, 105 (Supp. 1972); N.H.
REV. STAT. ANN., §§ 483-A:1 to 483-A:45 (Supp. 1972); N.C. GEN. STAT., §§ 113-
229 to 113-230 (Supp. 1971); R.I. GEN. LAWS, §§ 11:46.1-1, 2-1-13 to 2-1-24 (Supp.
1972); VA. CODE, §§ 62.1-13.1 to 62.1-13.20 (Supp. 1972); WASH. REV. CODE ANN.,

§§ 90.58 to 90.930 (Supp. 1972).
14. See, e.g., Just v. Marinette County, 56 Wis. 7, 201 N'W.2d 761 (1972);

Potomac Sand & Gravel Co. v. Governor, 266 Md. 358, 293 A.2d 241, cert. denied,
409 U.S. 1040 (1972).

15. See, e.g., Ocean Villa Apartments, Inc. v. City of Ft. Lauderdale, 70 So. 2d
597 (Fla. 1965). See also C. Harris, Environmental Regulations, 25 FLA. L. REV.

635, 649 (1973).
16. A Florida appellate court recently rejected the argument that the state's

water pollution control law gives the authority to prevent the filling of wetlands.
Hillsborough County Environmental Protection Commission v. Freindorson Properties,
283 So. 2d 65 (Fla. App. 1973). Importantly, however, the court did not disagree
with the concern for the environment represented by the position of the pollution
control commission and added:

[N]or do we doubt either petitioners' contention that, as a matter of fact,
the destruction of the red mangroves has a severe adverse ecological effect
upon the tidal waters involved here . . . or the fact that the legislature
possesses the power, in order to promote the quality of our environment,
to forbid the destruction of the mangrove area even by a landowner upon
his own property [emphasis in the original].

Id. at 67-68. The court cited Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970), cert.
denied, 401 U.S. 910 (1971), and Just v. Marinette County, 56 Wis. 7, 201 N.W.2d
761 (1972).

17. F.P. BOSSELMAN, THE TAKING ISSUE, U.S. Gov't Printing Office, 1973, at 328.

[i: 110



1974] Foundation for Sophisticated Environmental Strategies 115

The foregoing introduction indicates that public interest pro-
ponents have attained a high degree of sophistication in their ef-
forts to expand the scope of awareness and, ultimately, public
control over matters that were once thought the sacrosanct pre-
rogatives of private interests and of the government itself. While
litigation and legislation are not the only strategies they employ,
they are the most newsworthy and frequently culminate a series
of preparatory steps. For example, conferences are clearly foot-
stones to the legislature. But it was not always so straightforward
for protectors of the public interest to plot out a course and follow
it through. Indeed, in earlier days they were often ignored and
sometimes derided. While those days are not wholly gone and
environmentalists still sometimes find themselves cast as villains
and scapegoats,18 the public nowadays is sensitive to public in-
terest organizations and by and large has been well served by them.

As a consequence of greater environmental awareness and ac-
ceptance of public interest groups, legal strategies for achieving
environmental goals have crystallized into discernible patterns over
the past few years and will continue to do so until generally ac-
ceptable and effective goals are attained. Hence, one's legal strat-
egies must be strongly time and circumstance oriented. The bulk
of this article is a description of how the law was molded in a
specific way through litigation in the pre-sophistication, pre-strategy
days of environmental law suits. It is upon the firm base that has
been formed by this and many other environmental campaigns
that post-sophistication sallies now operate. In assessing this story
and others like it, one is struck by certain essential pervasive char-
acteristics that are symbolic of the people that involve themselves
in it. They are dogged determination, tenacity, durability, intelli-
gence, and courage.

Before turning attention to the details that follow, one may well
be warned that law is but one means of achieving any particular
goal, and quite often it is a limited one. The law, being merely
society's compelling tool for regulating human behavior, can in
the main do no more than truncate undesirable modes of behavior
at whatever extreme the majority lays down as the tolerable limit.

18. For example, the Florida chapter of the Audubon Society was recently sued
by trade unions and civil rights groups for challenging the validity of an environ-
mental impact statement in a dredge and fill case. The complaint alleged loss of jobs.



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

Although creative legislation and litigation can do much to define
goals and limits of acceptable behavior, experience has shown over
and over again that successful legal regulations reinforce public
mores and do not create them. In the context of environmental
control, this means that those people looking to the law as the sav-
ior of the environment must use it creatively, never edging too far
ahead of the public's contemplation of the need for regulating a
particular environmentally abusive behavior and ever pulling the
limits of tolerable behavior toward a more protective curtilage by
whatever means are at hand. Therefore, in mapping out a strategy
for achieving any given environmental goal one needs to test care-
fully the prevailing public sentiment and the current posture of the
law vis-a'-vis the unwanted behavior. One may then find his task to
be easy in that existing legal controls can adequately bring the
offensive behavior into line; or, more frequently at present, one
may find that either public sentiment or existing laws or both
thwart the immediate achievement of one's goals.

A FLORIDA CASE HISTORY

In selecting a Florida case history for demonstrating the pre-
sophistication development of environmental legal strategies, three
important situations compete for treatment. One is the Dade County
jetport battle that saw the Everglades hanging in the balance. 9

A second is the still unsettled Cross-Florida Barge Canal contro-
versy that pits the remains of the pristine Oklawaha River ecosys-
tem against vested interests in Florida and the minions of the U.S.
Army Corps of Engineers.20 Third is the dredging and filling of
estuarine areas, a practice that threatens to destroy not only a vital
link in the chain of life for most of Florida's fish and marine crea-
tures but also an irreplaceable element of the natural charm and

19. See M. Kessler and L. Teply, Jetport: Planning and Politics in the Big Cypress
Swamps, 25 MAMi L. 1Ev. 713 (1971).

20. The still-unfinished saga of the Cross-Florida Barge Canal may be the most
fascinating of all environmental controversies. It includes the strange spectacle of
the Corps of Engineers first being sued by environmental groups to halt the canal,
and then once that was done by executive order, being sued by vested interests to
start it up again. While this case has had tremendous influence upon the environ-
mental attitude of the Corps of Engineers and many important policy decisions, it
cannot claim the tremendous influence upon organic law exerted by the case de-
tailed herein.

[I: Ii0



1974] Foundation for Sophisticated Environmental Strategies 117

lure of the state. Dredging and filling has been selected for sev-
eral reasons.

First, despite the fact that the battle for gaining control over
indiscriminate dredging and filling has been going on longer than
the other two controversies (at least if one lays aside the "ancient"
pre-1962 history of the canal), it is probably the one the public
is least aware of. It deserves to be better known both for its sig-
nificant advancement for environmental protection and also to
acknowledge a debt of gratitude to the people that achieved an
important environmental goal. Furthermore, in terms of creating
definite, substantial changes in the law, both legislative and judicial,
it has been by far the most productive of the three situations to date.
To every important extent, this situation is the first one of major
consequence in which the public interest, being protected by an
aroused group of ordinary citizens, prevailed over the vested eco-
nomic interests of rich Florida developers. After decades of sub-
mergence, the public interest has surfaced in what portends to be
a massive assertion of dominance over private exploitation.

Today in Florida powerful legal controls exist for regulating
dredge and fill operations on the basis of environmental factors
alone, whereas only a few years ago no controls existed. Moreover,
as indicated in the introduction, new developments in this field
are fast unfolding. The remainder of this article will first lay down
the background of the dredge and fill controversy; it will then
trace through the process that led to change; and, finally, it will
attempt to assess the importance of what has occurred. Whether
a strategy really existed, and what it was, are questions which the
reader must answer for himself.

In setting the stage for the discussion one should imagine him-
self as a 1950 resident of St. Petersburg. Having been attracted
to the area by the balmy climate and by the beauty, felicity and
productiveness of the nearby Gulf of Mexico and salt water bays,
he has become alarmed at the indiscriminate dredging and filling
of Boca Ciega Bay, lying between mainland St. Petersburg and the
islands comprising the St. Petersburg beaches. In terms of the title
of this article, the first question he would be asking, would be:
"How does the law protect against exploitative development proj-
ects?" The answer, which will be explained shortly, would have
been that it does not. His next question would be, "What can be



COLUM BIA JOURNAL OF ENVIRONMENTAL LAW [1

done to change the law?" That answer is contained within the
events described in the bulk of this article.

DREDGING AND FILLING

Dredging and filling is the process of making dry land out of
submerged and tidal wetlands by scooping earth from one portion
of the water's bottom and piling it on another. Usually, but not
always, people dredge and fill to make money. Waterfront sites
for homes, commercial ventures and now condominiums bring in
a return to developers many times greater than the total cost of
the finished land fill. The venture is extremely lucrative for the
few individuals fortunate enough to control the tidal land bottoms
being filled.

On the other hand, dredging and filling is an extremely costly
process to a great many people who cannot claim any direct per-
sonal ownership of the lands involved. Dredge and fill projects
occur on the margin of the sea. Those who fill and build on sea-
front sites claim for themselves the sole right to view the sea from
one part of the world and oftentimes they obliterate adjoining
beaches, robbing the rest of the population of its right to be pres-
ent there and enjoy nature's bounty. Thus, indiscriminate dredging
and filling levies a very heavy price against the public's aesthetic
and recreational treasury.

But more than temporal pleasures are involved. Most destructive
dredge and fill operations occur in estuarine areas, which include
"tidal rivers, marshes, bays and river mouths, the inshore edge of
the ocean, and the land areas which interact with [them]."'21 It is
this rich area at the "edge of the sea and its estuarine waters ...
upon which most marine life depends. Here is where to find mus-
sels and clams, shrimps, lobsters and crabs, sea ducks and shore
birds, plus almost all of the fish we catch from the sea. ' -

These natural facts translate into several conclusions of vital
concern to the public interest of Florida. One is that the joy of
fishing which is claimed by countless Floridians is jeopardized by
continued destruction of life spawning estuaries. The second is

21. Developing and Managing Estuaries, Statement adopted by the Atlantic
States Marine Fisheries Commission, October 7, 1966, Portland, Maine.

22. Estuaries-America's Most Vulnerable Frontiers, Report of the National Wild-
life Federation, 1959, at 4.

[1: 110



1974] Foundation for Sophisticated Environmental Strategies 119

that the lure and charm of the state as a retreat for visitors who
are attracted by plentiful fish will be sharply diminished if the
good fishing fails. Finally, Florida's commercial fishermen will
find themselves deprived of their chosen livelihood if dredging and
filling continue unabated.

Attempts have been made to cast dredge and fill losses in mone-
tary terms. Taking Boca Ciega Bay as their example, two scientists
concluded that the destruction of marine life caused by fills em-
bracing 20% of the bay (3,500 acres) resulted each year in a loss
of $1.40 million.23 This estimate was predicated upon an annual
loss of $300 per filled acre for eliminated fishery production and
an annual loss of $100 per filled acre for ruined recreational value.
Capitalized at 5%, the estimated annual losses stemming from the
filled bottomlands of Boca Ciega Bay represent a public investment
of $28 million. Although I do not know what income was received
by the state in exchange for the filled acreage, I am confident
that it was much less than that sum. Other estimates of the po-
tential economic damage caused by dredge and fill have been
made. Taking a different analytical approach, in 1965 an economist
"conservatively" estimated the annual value of "good fishing" to
Florida to be not less than $1.75 billion.24 Thus, Florida's economic
future is clearly tied to the preservation of estuarine and other
fish breeding areas.

Exactly how much of Florida's estuarine areas could be filled
before heavy economic losses would be measured is hard to say.
To a large extent, however, cold economics is beside the point
to the people trying to protect the environment. To their way of
thinking each spoiled acre subtracts one from the diminishing lim-
ited supply that remains. They know that man can destroy in
mere days what nature toiled for thousands of years to create. In
essence, estuaries are non-regenerative resources. When we have
destroyed them, they and the life they support will be no more.
Therefore, man must be regulated, if not stopped in his pillage of
this important part of nature, whatever the economic consequences
to the privileged few may be.

Before moving on to achieving control over that form of abusive

23. J. Taylor and C. Sploman, 67 FISHERIES BULLETIN 213, 237 (1968).
24. J. McQuigg, The Economic Value of Preserving the Natural Shoreline, Ad-

dress to the Bulkhead Seminar, Stuart, Florida, May 21, 1965.



120 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 110

behavior, the discussion should bring out another economic factor.
Bottomlands frequently contain rich lodes of oil and other minerals
(such as limestone in the bottom of Lake Okeechobee). The ques-
tion-Who controls their exploitation?-is extremely important both
in determining who takes the profits and also in deciding what con-
sideration is to be given to environmental protection while they
are being extracted. In the course of the situation to be explored
here these factors receive little attention. As shall be seen, however,
they are strongly affected by the outcome.

BACKGROUND TO THE STRUGGLE

Dating back to origins in the common law of England, lands
lying under navigable waters along with those lying in the margin
between the line of mean low tide and that of mean high tide
were known as sovereignty lands, meaning that their ownership
resided in the sovereign or state. Although sovereignty lands could
in some circumstances be put to private uses, they were impressed
with an inalienable servitude in favor of public uses such as navi-
gation, fishing and bathing. In protection of the inalienable public
servitude, a "public trust" doctrine was devised by American courts,
stemming mainly from a U.S. Supreme Court opinion holding25 that
Illinois' conveyance of the submerged lands fronting the City of
Chicago to a private developer was invalid because it violated an
inalienable trust. Unfortunately, Florida developed an emasculated
public trust doctrine that not only let sovereignty lands fall into
private hands but also relinquished the state's right to control uses
made of them, including dredging and filling.

As a result of this peculiar legal posture and its confluence with
Florida's post-World War II development boom, dredging and
filling began in earnest in the late 1940's. Boca Ciega Bay, lying-
between the mainland of St. Petersburg and the St. Petersburg
beaches, was a favorite target. As one fill after another struck
beauty and life from the bay, conservationists of all likes became
alarmed. Before their eyes the natural bounty that they had as-
sumed to be unassailable by man was being gobbled up. How,
they asked, can this devastation be brought under control?

Taking 1950 as a watershed date, one can say confidently that

25. Illinois v. Illinois Central Ry. Co., 146 U.S. 387 (1892).



1974] Foundation for Sophisticated Environmental Strategies 121

it could not be. As early as 1856, the Florida legislature conveyed
certain sovereignty lands to riparian owners in order to encourage
the building of docks and wharves for commerce.2" In 1917 the
Florida legislature conveyed most of the sovereignty lands of the
state to the Trustees of the Internal Improvement Fund (TIIF)
(now composed of the governor and other elected members of the
Florida cabinet) to be held and disposed of "as they see fit. ' 27

Then in 1921 the legislature purported to convey further large
chunks of sovereignty lands to riparian owners, allowing for dredg-
ing and filling as did the earlier grants, so long as commerce was
not obstructed.28

As a result of these grants and of TIIF's power to sell sovereignty
lands, much of the bottom of Boca Ciega Bay, as well as huge
tracts of sovereignty lands throughout the state, fell into the hands
of large speculators.29

Inevitably as use was made of the bottomlands, the question
was raised as to whether the state could legally convey away pub-
lic trust lands. In a 1924 opinion,30 since reconfirmed,"' the Florida
supreme court held that the public trust could be abrogated by
statute. In short, the sovereign creates the trust; the sovereign can
eliminate it. The Florida supreme court's abrogation of the public
trust doctrine was pushed to the extreme in 1946, when the supreme
court said:

[I]f the grant of sovereignty land to private parties is of such
nature and extent as not to substantially impair the interest of
the public in the remaining lands and waters, it will not violate
the inalienable trust doctrine.3 2

26. Riparian Act of 1921, FLA. LAWS 1856, ch. 791.
27. FLA. LAWS 1917, ch. 7304.
28. Riparian Act of 1921, FLA. LAWS 1921, ch. 8537.
29. St. Petersburg Independent, November 29, 1966, at 1A, col. 3.
30. State ex rel. Buford v. City of Tampa, 88 Fla. 196, 102 So. 336 (1924). A

dissenting judge disagreed, saying:
Tide lands and lands covered by all navigable waters in a State are called
sovereignty land as distinguished from ordinary public lands, the latter
being subject to sale and private ownership in fee simple absolute, while
the former have the limitations of tenure and uses for public purposes.

Id. at 214.
31. Pembroke & Pembroke v. The Peninsular Terminal Co., 108 Fla. 46, 146

So. 249 (1933).
32. Holland v. Ft. Pierce Financing and Const. Co., 157 Fla. 649, 657-58, 27

So. 2d 76, 81 (1946).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

Presumably under that rationale the whole east coast of the state
could have been sold, dredged and filled because the public interest
in remaining areas, meaning the state's west coast, could not have
been impaired.

With the coming of the financial crisis of the late 1920's and
the 1930's came also fractionation of the ownership of the land.
By 1950 many private owners were readying to "improve" their
lands by dredging and filling. The law was on their side: the in-
alienable public trust had been supplanted by the inalienable pri-
vate right to dredge and fill.

In terms of environmental integrity (not to mention governmental
integrity) this state of the law was intolerable. What follows is
an account of the quest for change that has in large measure re-
turned public interest to its rightful place in making decisions in-
volving the use of sovereignty lands.

Sometime around the middle 1950's two men named Zabel and
Russell purchased about 15 acres of bottom of Boca Ciega Bay
with the intention of extending their 15 acre upland trailer court
out onto a landfill in the bay. The price they paid is disputed.
Opponents of the fill say about $100, whereas the landowners'
lawyers say maybe $6,000. Either price would be a bargain. The
land was originally sold by TIIF in 1925 under the authority of
the 1917 law. Accordingly, the title carried with it the right to
dredge and fill to the channel.

After having lost a skein of dredge and fill battles conservation-
ists were finally able to arouse sufficient public support in 1955
to cause the Florida legislature to create an authority to regulate
dredging and filling of submerged lands within Pinellas County.3"
The Pinellas County Water and Navigation Control Authority (PCA)
was to consider eight factors in issuing permits. Among the eight
were the effects on natural beauty and recreation and conserva-
tion of wildlife, marine life and other natural resources. This was
a first step in attempting to bring dredge and fill projects under
control.

The next significant step was taken in 1957. In that year the
Florida legislature enacted the Bulkhead Act,3 4 which authorized the
setting of a line, seaward of which filling would not be permitted.

33. FLA. LAWS 1955, ch. 31182.
34. FLA. LAws 1957, § 57-362.

[I: 1i0



1974] Foundation for Sophisticated Environmental Strategies 123

The purpose was to restrict the former practice of filling to the
channel by setting bulkhead lines shoreward of the channel. The
Bulkhead Act also removed TIIF's authority to dispose of sovereign-
ty lands as it saw fit, and replaced it with new authority to sell
only in situations that would not be contrary to the public interest.
Thus, the noose of regulation on exploitation was beginning to form.

As required by the 1955 legislation, Zabel and Russell applied
to PCA to set a bulkhead line across their submerged lands and
for a permit to dredge and fill about 15 acres. The application was
subsequently amended to reduce the proposed fill to 11.5 acres.
As shall be seen, almost 13 years were to elapse while that and
related applications were being processed. Out of the multitude of
legal skirmishes came a clarification of state law regarding dredge
and fill operations, and much protective legislation was influenced.
Most importantly came a ruling under federal law that a federal
agency, the U.S. Army Corps of Engineers, must consider conser-
vation factors in issuing permits to dredge and fill private lands
under navigable waters and may refuse to issue a permit solely
on the basis of environmental considerations.

That element of control was not available when Zabel and Rus-
sell filed their application in 1950. Its importance must not be
discounted, however, because only a meager 11.5 acres were in-
volved in its determination. The ruling has potential nationwide
applicability, extending to not less than 27,000 square miles of
submerged and tidal coastal lands3 5 and to uncounted thousands of
square miles of bottoms under fresh navigable waters.

When the case began, two small landowners were claiming the
right to:dredge and fill. Before it was terminated by the U.S.
Supreme Court's refusal to review a decision contrary to their posi-
tion, the small-timers had been reinforced by large land developing
and mining interests from across the country. They all fell together.

Ti Epic STRuccE

Local and State Proceedings

Zabel and Russell filed their application with PCA sometime be-
fore fall 1958, asking for two things: that a bulkhead line be set

35. 2 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATIVE NEws 1390
(1953).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

across their submerged lands and that a permit be issued to dredge
and fill a designated area. The first of several anecdotal events oc-
curred at this time. The council of the Town of South Pasadena,
the municipality in which the property lay, voted by a 4-to-i margin
to support the application. This was the council's prerogative un-
der the PCA enabling act, which gave municipalities "the right to
be heard." The interesting point is that the membership of the
council at that time included a certain Mr. Zabel.

The municipality's recommendation was not binding on PCA,
however. Following specified procedures, the latter body appointed
a hearing examiner to investigate the proposed project and make
a recommendation as to the disposition of the application. During
the ensuing months three public hearings were held. Applicants
were represented in these hearings by a local lawyer well versed
in dredge and fill matters. His tactic was to show that neither the
environment nor the navigability of the surrounded area would
be harmed by the project and evidence was adduced in support of
both contentions. The argument that no damage to the environ-
ment would ensue is of particular relevance to what was to follow
in later years. In support of it at the PCA hearings, applicants pre-
sented expert biological testimony alleging that the area had been
made sterile by previous dredge and fill projects; that the area was
a biological desert; and that it could not be harmed further by
additional filling. This position was taken in 1958 and 1959.

More than two hundred objections to the project were registered
with PCA and 15 witnesses testified against it at the hearings.
Most of them were local residents who spoke mainly in terms of
comparisons, reciting how a formerly beautiful, clean, productive,
enticing bay had been spoiled by earlier fills. Leading the opposi-
tion at this time were two individuals. One was a local lawyer
whose property interests in a nearby tract of land were threatened
by the project. His interest was economic; the Zabel-Russell fill
would be harmful to any fills he might later plan for his property
and could diminish its value as well. The other principal objector,
and central protagonist throughout, was a local female resident
who represented Boca Ciega Bay. The remainder of this narrative
will not have much to say about either of these characters. Never-
theless, judging from the recollections of a number of people closely
involved throughout the struggle-some praising her, some con-
demning her-the work and persistence of that dedicated conser-

[I: 110



1974] Foundation for Sophisticated Environmental Strategies 125

vationist was of great importance in reaching the final goal.
On July 23, 1959, the PCA hearing examiner issued his findings

with a recommendation that the applications be denied, saying in
part, "Applicants have failed to establish that the proposed plan
of development will have no adverse effect on the use of the waters
of Pinellas County for transportation, recreational or other public
purposes, flow of water or tidal currents and erosion and shoaling
of channels in the area necessarily affected by the proposed devel-
opment . .." On November 12, 1959, PCA "confirmed" the hear-
ing examiner's report without extended debate and denied the
application.

In a practical sense, this was a break from the past. A permit
was denied in protection of the public interest. Had the proceed-
ings stopped here, however, later and better supported permits
would have continued to come in putting great pressure on the
local approval agency. Absent unusual persistence, wisdom and
fortitude it would have approved at least some of them that would
have damaged the bay. With a somewhat ironic consequence, the
applicants' dogged determination assured that the matter would
not drop so easily. With their hackles up they pressed through
every avenue of legal recourse available to them in pursuing a per-
mit to dredge and fill 11.5 acres of Boca Ciega Bay.

Their next step was to appeal the permit denial to the circuit
court for the sixth judicial circuit of Florida. The appeal alleged
first that the permit had been erroneously denied on the merits
and, second, that in any event, the denial was an unconstitutional
action. The constitutional argument went as follows. The land in
question had been a part of a large bloc sold by TIIF in 1925
under the authority of the 1917 law which the Florida Supreme
Court had ruled carried with it an absolute right to dredge and
fill. To deny that right, under the authority of the Bulkhead Act
of 1957, or otherwise, would have the effect of denying the prop-
erty owner the only possible use of his lands. Therefore, a denial
would constitute an unconstitutional taking of private property
without compensation. Such a taking is forbidden by the Florida
constitution.

On November 7, 1961, the circuit court helda3 against Zabel and

36. Opinion and Decree Upon Appeal from the Decree of Pinellas County Water
and Navigation Control Authority, Application No. 80, Law No. 14,419 (Cir. Ct.,
6th Jud. Cir., Pinellas Cty., Nov. 7, 1961).



COLUMBIA JOURNAL OF ENVIOONMENTAL LAW

Russell on the merits, finding that the hearing examiner's conclu-
sions were supported by the record of the hearings. As for the
constitutional argument, the court said applicants were "estopped"
to raise them because of having previously relied upon the validity
of the statute in saying that the denial was erroneous on the merits.

Appealing to the Florida first district court of appeal, the
applicants continued to voice both their contentions: that the de-
nial was erroneous on the merits and that it was an unconstitutional
act. In May, 1963 the district court of appeal issued its opinion,3 7

again denying the permit. The circuit court's holding on the merits
was affirmed, but the constitutional argument was handled differ-
ently. In the interim between the rendering of the circuit court's
opinion and the issuance of the district court's opinion, the Florida
Supreme Court had issued an opinion 3  that the Bulkhead Act of
1957 was constitutional in its application to a case then before that
court. In the Gies case, as it is called, other landowners had argued
that the Bulkhead Act of 1957 could not be applied to restrict their
right to fill channel lands that had been purchased long before the
Bulkhead Act was enacted. On the particular facts of the Gies
case, the supreme court held the act to be constitutional. There-
fore, relying upon Gies as authority, the district court of appeal
ruled that the denial of the Zabel-Russell application was not un-
constitutional.

At this point two changes occurred. One was that the lawyer
who originally led the objectors dropped out of the case. He sold
his interest in the nearby lands and professed no continuing in-
terest in the environmental question. The second was that the ob-
taining of the Zabel-Russell fill permit became somewhat a pure
contest of wills with no lingering economic goals. According to
the Zabel-Russell lawyer, his clients at this time had determined
that the proposal was no longer economically feasible because of
advancing costs.

Pressing their constitutional arguments upon the Florida Supreme
Court, Zabel and Russell finally hit upon a successful formula. In
a split decision 9 with three justices dissenting, the High Court

37. Zabel v. Pinellas County Water & Nay. Control Auth., 154 So. 2d 181 (Fla.
Dist. Ct. App., 2d Dist., 1963).

38. Gies v. Fisher, 146 So. 2d 361 (Fla. 1962).
39. Zabel v. Pinellas County Water & Nay. Control Auth., 171 So. 2d 376 (Fla.

1965).

[1: llO



1974] Foundation for Sophisticated Environmental Strategies 127

agreed that to deny the permit would be an unconstitutional taking
of private property without compensation under the facts of the
Zabel-Russell application. Distinguishing the factual situation of
the Gies case, the court pointed out that the PCA hearing exam-
iner's finding was that the applicants had not shown that the
public interest would not be damaged by the project. Since the
original sale of the bottomlands in question was made under the
1917 legislation, it carried with it the absolute right to dredge and
fill in the absence of either a valid exercise of the police power
of the state or a retention of some sovereignty servitude in the
lands. In order for either limitation to apply, according to the
court, the state must bear the burden of proving that a "material
adverse effect" to the public interest would otherwise occur. There-
fore, every decision on the application up to that point had been
erroneous because all had depended upon an original finding that
had placed the burden of persuasion upon the applicants. Hence,
on January 20, 1965, it appeared that the landowners would prevail.
His lawyer says that he, the lawyer, was surprised with the result.
He had expected to lose in Florida on the basis of the Gies case,
but to win in federal court.

The Florida supreme court quashed the lower appellate court's
opinion and remanded the case for "disposition consistent here-
with." An earlier line penned into the opinion created some con-
fusion as to just what such a disposition might be and added a
melodramatic twist to this already fascinating tale. In that regard,
it should be recalled that almost seven years had elapsed since
Zabel and Russell first proposed the project. In the meantime an
original opponent had dropped out of sight and the landowners
themselves purportedly had abandoned their project, if not their
quest for vindication. Laying the basis for more dispute, the su-
preme court said, "The examiner did not find, nor could he have
on the record, that any material adverse effect on the public in-
terest had been demonstrated."

Upon receiving the case on remand from above, the district
court of appeal vacated4" its earlier opinion and ordered the circuit
court to comply with the supreme court's ruling. On April 9, 1965,
the circuit court in turn ordered PCA to issue the sought permits.
At that point, opponents objected strenuously and argued that the

40. Unreported opinion (Fla. Dist. Ct. App., 1st Dist., May 5, 1963).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

supreme court's opinion had been misread; that it left open the
holding of further hearings in which the public could prove ma-
terial adverse effect. Challenged on that ground, the circuit court's
ruling bounced up to the district court of appeal for review. Fore-
closing any prospect of further proceedings on the merits, the
appellate court upheld41 the circuit court's order, saying that it
"complies with our mandate and is consistent with the opinion of
the supreme court." According to the district court, the supreme
court's allusion to the hearing examiner's findings when it said
"nor could he have [found any material adverse effect]" ruled out
further hearings.

On an uncertain date following that final appeal to the Florida
District Court of Appeal, PCA issued a permit "subject to approval
of the project by the Trustees of the Internal Improvement Fund."
This condition was gratuitously added by PCA as it continued
to look for a way to halt the project. While TIIF arguably had a
right to review the action, PCA had not been created as a mere
fact-finding and advisory body, and in ruling as it did it voluntarily
attempted to limit its own authority.

By this time, however, PCA was as thoroughly committed to its
position as were the applicants. Taking every opportunity to oppose
the permit, it is said that PCA sent off a delegation to urge TIIF
to disapprove the conditional permit. This maneuver raised judicial
tempers. Hauling the PCA members before the bench, the circuit
court judge threatened them with contempt of court in refusing
to issue an unqualified permit as they had been ordered to do.42

Not without argument, the commissioners wilted under the ire of
the court and issued therewith a clear permit on May 4, 1966.
Eight years after the process began Zabel and Russell had obtained
state clearance for their project.

Aside from the massive public interest that had been created,
dredge and fill opponents found themselves little better off in 1966
than they had been in 1957. Although the Bulkhead Act of 1957
provided some protection for lands sold after the date of its pas-
sage, the supreme court's Zabel holding severely diminished public
control over lands which seemed to have been established by Gies.

41. Pinellas County Water & Nav. Control Auth. v. Zabel, 179 So. 2d 370 (Fla.
Dist. Ct. App., 2d Dist., 1965).

42. St. Petersburg Times, May 5, 1966, at 1B, col. 1.

[1: 110



1974] Foundation for Sophisticated Environmental Strategies 129

Florida law under Zabel continues to be that the public must
show "material adverse effect" on its interests in order to apply
the Bulkhead Act's restrictions to deny fills in lands sold under
the early laws. One later qualification can be noted. In 1970 the
powers of TIIF were enlarged to allow for acquisition of submerged
lands through condemnation "in the public interest and for a pub-
lic purpose." 13 Although the way in which this power will be ex-
ercised remains to be seen, arguably it provides a means for return-
ing lands such as the Zabel-Russell tract to the public domain.

Federal Proceedings

Exercising its constitutional power 4 to regulate commerce, Con-
gress in 1899 enacted the Rivers and Harbors Act,4" which forbids
erecting obstructions to the navigable capacity of "any waters of
the United States," except as affirmatively authorized by Congress
under permit issued by the Department of the Army. For years
this statute operated mainly as a navigational servitude, and impact
upon navigation was the sole criterion to be satisfied in permit
issuance. 4

' By the late 1950's, however, public reaction to environ-
mentally abusive projects that were otherwise no hindrance to
navigation (and, indeed, often enhanced it) created pressures in
Congress for widening the scope of consideration given under the
"regulation of commerce" rubric. Rather than invest a separate
agency with an environmental permit power, Congress enacted the
Fish and Wildlife Coordination Act of 195841 that imposed an ad-
ditional duty upon the Army. The Coordination Act requires that
an approving agency consult with the Department of the Interior
and the head of the pertinent state agency:

[W]ith a view to the conservation of wildlife resources by
preventing loss of and damage to such resources as well as
providing for the development and improvement thereof in
connection with such water resource development [prior to
modifying] the waters of any stream or other body of water.48

43. FLA. STAT. ANN., § 253.02 (Supp. 1972).
44. U.S. CONST. art. I, § 8.
45. Rivers & Harbors Act of March 3, 1899, 33 U.S.C. § 403 (1970).
46. This is true with very few exceptions. The two cases most alluded to in the

Zabel proceedings were United States ex rel. Greathouse v. Dern, 289 U.S. 352
(1933), and Miami Beach Jockey Club v. Dern, 86 F.2d 135 (D.C. Cir. 1936).

47. 16 U.S.C. § 661 (1970).
48. 16 U.S.C. § 662(a) (1970).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

A stated purpose of the act was to give consideration to "wild-
life conservation" equal to that given other factors, such as ex-
panding the national economy. This bit of resource philosophy
determined to be of profound importance in ensuing decisions; al-
though at the time Congress adopted it apparently little discussion
was had of what the future consequences might prove to be. To
the end of giving proper attention to wildlife conservation, agencies
were enjoined to give "full consideration" to the reports and rec-
ommendations made by the various conservation-oriented agencies.

Although a Memorandum of Understanding had been executed
by the Secretaries of the Army and Department of the Interior
concerning the implementation of the statute, the full scope of its
mandates had not been manifested when the Zabel-Russell appli-
cation came to the Army Corps of Engineers. It is safe to say that
navigational servitude was still the principal factor in most permit
decisions. 9 As shall be seen, however, the status of that factor
changed in the processing of an application to fill a tiny bit of the
remaining unfilled bottom of Boca Ciega Bay.

The Zabel-Russell application to the Army Corps of Engineers
was accompanied by a flood of protest mail. More than seven hun-
dred objectors registered their complaints from across the country.
While this deluge stemmed at least in part from the organized
activities of "big conservation," which had now been geared up
to join the fray, the brunt of the opposition was still borne by the
friends of Boca Ciega Bay. It must also have been about this time
that big vested economic interests, alarmed by the potential impli-
cations of the case, began coming in on the side of the landowners.

Owing to the storm of controversy, Colonel Tabb, then the
Corps' district engineer, called for a public hearing in St. Peters-
burg, near to the proposed project. This near-situs hearing, as
opposed to a district headquarters hearing, is itself said to be
extraordinary, owing, no doubt, to the intense public interest.

Before reading further, the reader should be aware of how the

49. The following statement appears in a Corps document entitled Permits for
Work in Navigable Waters, U.S. Department of the Army, Corps of Engineers, 1962:

General policies on issuing permits. The decision as to whether a permit
will be issued must rest primarily upon the effect of the proposed work
on navigation.

Application of the Fish and Wildlife Coordination Act is described, infra, at text
accompanying note 54.

[i: II0



1974] Foundation for Sophisticated Environmental Strategies 131

Corps of Engineers processed permit applications at the time. The
Secretary of the Army is charged by the Rivers and Harbors Act
with authorizing projects upon the recommendation of the Chief
of Engineers." ° For efficiency in administration the Secretary has
delegated approval of projects

which are entirely routine and which involve no difference
of opinion on the part of engineer authorities, nor doubt as to
the law, facts or regulations, nor any opposition or other con-
siderations which should be decided by higher authority

to the Chief of Engineers, who in turn has redelegated approval
authority to Division and District Engineers.5' The Zabel-Russell
application was destined for the top, largely because of the furor
of public controversy. Two other factors are important. One is that
the Corps would not usually issue a permit when state or local
authorities declined to consent. The other is that in controversial
cases it would hold hearings in which an applicant had a right to
present relevant evidence, but no right to cross-examine opposing
witnesses. This was the nature of the hearing called in St. Petersburg.

Following its policy of contacting local agencies, the Corps called
for comments on the Zabel-Russell application. PCA replied, "no
protest," as did TIIF, Central and South Florida Flood Control
District (who in fact had no jurisdiction) and the Board of Pilot
Commissioners for the Port of St. Petersburg (BPC). According
to the main conservation representative in this affair, TIIF held
a hearing before filing the no protest position, but without giving
any public notice that it was to occur. Making the situation even
more difficult for the environmentalists, TIIF had three false starts
toward ia hearing before it was finally held.

The emergence of BPC supplies another episodic sidelight to
this story. Apparently, that body, which was chartered by the statute
to undertake certain responsibilities concerning pilotage, had never
claimed any interest in dredge and fill applications prior to this
juncture in the Zabel-Russell proceedings. At this time, however,
one of the landowners' lawyers who had served as secretary of
BPC suddenly resigned his position. Thereafter, BPC claimed an
interest in the controversy and filed a "no protest" statement and,

50. 33 U.S.C. § 403 (1970).
51. 33 C.F.R, pt. 209 (1974).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

later, commissioned a study of the effects of the proposed project
upon navigation in the vicinity. According to the BPC study, navi-
gation would be "greatly aided" by the project. 2

Filing protest against the application were the Florida Board of
Conservation on behalf of the State, the County Health Board of
Pinellas County and, somewhat courageously, the Board of County
Commissioners of Pinellas County. It took courage for the County
Commissioners to submit their protest because they as individuals
were the very same persons who constituted PCA. As members of
PCA they were compelled by court order and threat of contempt
not to protest; but as members of the Board of County Commis-
sioners they were equally compelled to protest because of their
convictions as to what was truly in the public interest. Thus, al-
though officially they were schizophrenic, as individuals they were
one-minded. Nevertheless, in issuing the protest some of them must
have wondered whether the court's order controlled them as in-
dividuals as well as PCA members.

More than 200 objectors appeared at the St. Petersburg hearing
in November 1966. Many of them were the same citizens who had
testified eight years earlier in the PCA hearings. But this time their
intuitive objections were buffered by professional support. The
Bureau of Sports Fisheries and Wildlife of the U.S. Fish and Wild-
life Service opposed the petition "because of the value of the area
encompassed by this permit as a nursery area for marine fishes
and the damage . . . which would result."' 3 Indeed, instead of
being a "biological desert," as claimed by the landowners' biologist
in 1958, the area was now seen as one replete in life-supporting
flora and invertebrates, making it "one of the last remaining un-
destroyed nursery areas in central Boca Ciega Bay."

The environmental testimony had changed drastically in the
years intervening between 1958 and 1966. Zabel's lawyer recalls
now that no legitimate biologist would support their earlier posi-
tion that no harm to the environment would ensue: "For every
biologist we could turn up, they could produce twenty-five." More-
over, under the Corps of Engineers' hearing rules no cross-exami-
nation of witnesses was allowable. It became necessary, therefore,

52. Capt. J.W. Winters, Memorandum to Board of Pilot Commissioners, Dec. 7,
1966.

53. Letter of August 3, 1966.

[I: ii0



1974] Foundation for Sophisticated Environmental Strategies 133

for Zabel-Russell to change their legal stance at the hearing. This
they did, adopting a singular position that was to couple with an-
other equally singular one later taken by the Corps to give the case
its ultimate vital importance. First, the landowners in essence stipu-
lated that biological damage would ensue from the project. Next,
relying upon the implications of the Florida supreme court's opin-
ion in the state proceedings, the landowners claimed absolute
ownership in fee simple absolute of the bottomlands in question,
giving them the right to "sterilize the bottom," if they so chose.
Starkly put, Zabel-Russell admitted that environmental damage
would occur and denied the existence of any federal authority to
stop it.

Although some small amount of testimony was given concerning
bad effects on navigation, the bulk of evidence on that point sup-
ported the contention that navigation would not be harmed. Con-
sequently, when on November 30, 1966, Colonel Tabb recommend-
ed that the permit be denied on the grounds that the project would
be contrary to public interest, despite the fact that it "would have
no material effect on navigation," the second crucial legal position
began to crystallize. On January 11, 1967, the Division Engineer
concurred in Colonel Tabb's recommendation, stating "widespread
opposition" as his reason. The Chief of Engineers then supported
the decisions of his underlings. Finally, on February 28, 1967, Sec-
retary of the Army Resor denied the application, giving as his
reasons that the project:

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
(1970);

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 Pinel-
las County; and

4. Would be contrary to the public interest.

The absence of any exercise of the navigation servitude is promi-
nent. Of equal prominence was the presence of environmental
criteria in denying a federal permit under the authority of the



134 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [1: 110

Rivers and Harbors Act. From the point of view of many vested
interests, this action represented a dangerous break from past prac-
tices. Carte-blanche approval at the state level, so long as navi-
gation was not hurt, now began to pale in importance and the
possible ramifications of the new Corps position began to be felt
more widely.

Among the wider concerns was the question of whether mineral
rights under submerged lands would any longer be exploitable. For
example, Coastal Petroleum Company controlled large areas of
valuable limestone deposits in the bed of Lake Okeechobee under
lease from TIIF and yearned to dig them out. Their claim of right
had considerable validity. Florida courts had previously held the
leases to be valid, giving the company the state's imprimatur to
proceed. Furthermore, navigation was not an issue. Therefore, the
only arguments for stopping the project were environmental ones.
Because Lake Okeechobee is a vital source of fresh water for south
Florida, environmentalists saw grave dangers lurking in the project,
including a possible threat of salt water intrusion into the lake's
waters. Would the federal government block the project by refusing
to allow the mining operations to go on in navigable waters? What-
ever was decided in the Zabel-Russell proceeding could control
the Coastal Petroleum situation.

On May 10, 1967 the Zabel-Russell interests brought suit against
the Corps in the Tampa federal district court, claiming that the per-
mit had been erroneously denied in that the Rivers and Harbors Act
authorized denials only when navigation was threatened. During
pretrial maneuverings, the two crucial legal positions alluded to
above hardened into their final forms. On the one hand, the land-
owners stipulated that environmental damage would occur, thereby
removing that factual dispute as to the propriety of the denial
should environmental factors be held legitimate concerns. On
the other hand, the Corps of Engineers admitted that "the pro-
posed work would have no material adverse effect on navigation,"
thereby removing the fact on which the Corps customarily relied to
justify the denial of permits. Hence, the issue was joined: Under the
Rivers and Harbors Act, is it erroneous for the Corps to refuse to per-
mit dredge and fill operations in privately owned bottoms under
navigable waters solely because of adverse environmental effects?

On February 17, 1969, Federal District Judge Krentzman an-



1974] Foundation for Sophisticated Environmental Strategies 135

swered that question in the affirmative. 4 The permit must issue.
Krentzman was concerned, as had been the Florida supreme court
before him, about taking, or denying the use of, private property
without a clear legislative authorization. Krentzman carefully stud-
ied the history of the Fish and Wildlife Coordination Act of 1958,
and though he found it required multiagency consultation about
conservation factors, he did not find a clear congressional intention
to add to the Secretary's regulatory powers. Said Krentzman,

[T]he Rivers and Harbors Act of 1899 .... even if said statute
is read in pari materia with the U.S. Fish and Wildlife Coordi-
nation Act, . . . does not vest the Secretary of the Army with
discretionary authority to deny an application for a dredge and
fill permit thereunder where he has found factually that the
construction proposed under the application would not interfere
with navigation.

Having so decided the legal issues, Judge Krentzman ordered Col.
Tabb and Secretary Resor to issue a permit "in accordance with
the application of plaintiffs." Krentzman restrained the execution
of the order, however, while appeal was made to higher authority.

Before this exposition is continued, it would not be amiss to
focus down on the reasoning of the federal court (and that of
the Florida supreme court) because it in large measure epitomizes
the crux of most truly meritorious environmental controversies. As
between private rights of ownership, which, indeed, are rights
that civil libertarians might choose to defend, and conceptual and
somewhat amorphous public rights, which has the superior call
for legal protection? Note that this question is different from asking
which deserves the greater legal protection. Both courts addressed
the former question and gave the reply they thought dictated by
existing law: "Property rights are better." As for the answer to the
latter question, Judge Krentzman said, "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." As shall be seen, Judge Krentzman was
wrong as to the existing state of the law. Those who are truly
interested in strategies for future conflicts might ponder whether
he did a poor job of legal craftsmanship or whether he approached

54. Zabel v. Tabb, 296 F. Supp. 764 (M.D. Fla. 1969).



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

the task with the wrong state of mind in view of who was to review
his opinion.

In appealing the decision to the Fifth Circuit Court of Appeals,
Corps lawyers noted that the Rivers and Harbors Act of 1899 for-
bade any obstruction to navigable waters except as affirmatively
authorized and took the position that any fill, whether materially
adverse to navigation or not, could not be made until the ban was
lifted. Moreover, argued the lawyers, the Fish and Wildlife Co-
ordination Act "set a clear standard that the prohibition was not
to be lifted, if to do so would adversely affect fish and wildlife. ' 5

That was the crux of the government's argument, although two
earlier federal cases56 were cited for the proposition that permits
could be denied even in situations where navigation was not to
be adversely affected.

Countering the government's contention, the Zabel-Russell law-
yers brought in a new line of argument that was to tangle the fate
of the 11.5 acres of Boca Ciega Bay in what was intended to have
been the solution to an earlier even more tumultuous dispute over
the control of sovereignty lands. Stated simply, the earlier fight
was over which sovereign-the federal government or the states-
controlled the exploitation of minerals, notably oil, lying beneath
sovereignty lands at the margin of the oceans. Texas, California
and Louisiana, where oil had been found in plentiful supply, were
the hot spots. Although the grant of statehood to these states was
commonly assumed to have carried ownership of the bottoms, sub-
ject to the commerce servitude, the United States government con-
tested that assumption in several law suits, including one involving
bottomlands off the California coast. Coming like an earthquake
upon the coastal states and all holders of interests in sovereignty
lands deriving from the states, a 1947 opinion of the United States
Supreme Court sustained a complaint alleging that "the United
States of America is possessed of paramount rights in and powers
over, the lands, minerals, and other things of value underlying the
Pacific Ocean, lying seaward of the ordinary low water mark on
the coast of California .... ,"s Although the ruling applied directly

55. Brief of the U.S. Government, filed with the Fifth Circuit Court of Appeals,
Case No. 27555, at 34.

56. United States ex rel. Greathouse v. Dern, 289 U.S. 352 (1933); Miami
Jockey Club, Inc. v. Dern, 86 F.2d 135.

57. United States v. California, 332 U.S. 19, 22 (1947).

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1974] Foundation for Sophisticated Environmental Strategies 137

only to California, the U.S. Attorney General announced plans to
press the theory everywhere in protection of the interest of the
United States.5 8 Throughout the country grave uncertainties shroud-
ed title to lands valued in terms of fabulous fortunes.

After hot debate, Congress in 1953 enacted legislation59 to settle
the confusion created by the California case. The solution, con-
demned as a great giveaway by many critics,60 was to convey to
the states "all right, title, and interest of the United States" in
sovereignty lands and in the natural resources found in them. The
Submerged Lands Act, as it was named, in effect operated as a
quit claim deed releasing most of or all of the interests of the United
States in the lands, if any existed, to the various coastal states.

Sixteen years after the Submerged Lands Act became law, the
Zabel-Russell case came along, testing just how far relinquishment
of federal control really went. Arguing from the text of the statute,
the landowners asserted that the states had been given full right
to manage natural resources and, furthermore, that the federal
government retained rights only over navigation, flood control and
production of power. Furthermore, relying heavily on Judge Krentz-
man's earlier opinion, the landowners argued that the Fish and
Wildlife Coordination Act had not expanded the scope of federal
control. Therefore, according to that argument, regulation of con-
servation was vested in the State of Florida and not in the federal
government through the Army.

Another crucial episode that is not documented in the written
records occurred at this point in the case. By then the question of
whether or not mining limestone in the bottom of Lake Okeechobee
should be permitted under the Rivers and Harbors Act had been
presented to the Corps of Engineers. Because Florida authorities
had protested, the Corps denied the permit and was subsequently
hauled into federal court a second time on charges of erroneously
denying a permit. Realizing that the appellate decision rendered
in the Zabel-Russell case would control the Okeechobee dispute,
Coastal Petroleum requested permission to file a brief as "friend

58. 2 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATIVE NEWS 1422
(1953).

59. Submerged Lands Act, Pub. L. No. 83-31, 43 U.S.C. §§ 1301-15 (1970).
60. 2 UNITED STATES CODE CONGRESSIONAL AND ADMINISTRATrVE NEWS 1439 and

passim (1953).



COLUMBIA JOURNAL OF ENVIRON IENTAL LAW

of the court" in the Zabel-Russell proceedings. Permission was
granted.

According to the Zabel-Russell lawyers, this action took place
just after they had been informally notified that their case had
been placed on the Fifth Circuit Court of Appeals' summary dis-
position docket without a hearing. In the great bulk of cases this
would mean an affirmance-that is, victory for the Zabel-Russell
interests. Rarely will a lower federal judge be summarily reversed
without hearing arguments. In view of this leak of inside informa-
tion, the Zabel-Russell lawyers opposed any tampering with the
existing status of the case. Nevertheless, the Coastal Petroleum
brief was filed. Shortly after, according to the Zabel-Russell lawyers,
the case was removed from the summary disposition docket and set
for trial.

Whether or not the Coastal Petroleum brief actually changed
somebody's mind about the case is not known to the Zabel-Russell
lawyers. They think it did. An examination of the brief itself does
not reveal any remarkable new arguments. Merely differing in
emphasis from that of Zabel-Russell, the Coastal Petroleum brief
delved into the history of the Fish and Wildlife Act of 1958 to
argue that the Act, when proposed, was virtually non-controversial
and received "no discussion at all in either house." "Not one person
or one Representative said a single word about the purpose or
content of the bill." (Emphasis in the original.) Reciting as fact
that 16 million acres lie under navigable waters in the State of
Florida alone and that the nation has "multi-millions" of acres
under navigable waters, Coastal Petroleum argued that:

[T]bis routinized passage of what appeared to be an unremark-
able bill, a bill which purported to be nothing but a Federal
in-family-housekeeping statute, is eloquent testimony that no
single Senator or Representative had any idea that the bill was
intended to affect tens of thousands of private persons and
multi-millions of acres."'

Issue was joined in oral argument before a three-judge panel of
the United States Court of Appeals for the Fifth Circuit in Jackson-
ville on December 5, 1969. Notes made by a non-participating Corps

61. Coastal Petroleum Company's amicus curiae brief in Zabel v. Tabb, filed with
the Fifth Circuit Court of Appeals, Case No. 27555.

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1974] Foundation for Sophisticated Environmental Strategies 139

lawyer reveal two impressions conveyed to him by the judges'
demeanor. The first was that at least one judge appeared strongly
to favor conservation. The other was that the court repeatedly
questioned the lawyers about the scope of Congress' commerce
power and the extent of its applicability to the dispute. This ori-
entation should have been disquieting to the vested interests.

Beginning its July 27, 1970 opinion62 saying "It is the destiny
of the Fifth Circuit to be in the middle of great, oftentimes explo-
sive issues of spectacular public importance,"63 the court reversed
Judge Krentzman's opinion. Moving rapidly to the most funda-
mental question, the court examined whether or not Congress had
the power to "protect wildlife in navigable waters." Looking for
the requisite indicia of authority, which is "effect on interstate
commerce," the court found it saying:

In this time of awakening to the reality that we cannot continue
to despoil our environment and yet exist, the nation knows, if
Courts do not, that the destruction of fish and wildlife in estu-
arine waters does have a substantial, and in some areas a devas-
tating, effect on interstate commerce . . . . [D]redge 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.6 4

Pressing on to the argument that Congress had relinquished its
power to the states in enacting the Submerged Lands Act, the
court cited a section of the statute stating that the federal gov-
ernment specifically retained its "powers of regulation and control
of said lands and waters for the constitutional purposes of com-
merce:. .. "65 Therefore, said the court, the right to control activi-
ties affecting commerce had not been abrogated and to the contrary
remained in federal hands.

Gaining momentum, the court next confronted the argument that
Congress in enacting the Rivers and Harbors Act exercised its
commerce power only so far as navigation was concerned and no
further. In essence, the argument is a somewhat subtle one that

62. Zabel v. Tabb, 430 F.2d 199 (5th Cir. 1970).
63. Id. at 200.
64. Id. at 203-04.
65. 43 U.S.C. § 1314(a) (1970), quoted 430 F.2d at 205.



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

is used by lawyers in differentiating between the existence of a
source of power in the Constitution and an exercise of the power
through legislation. Without an enabling statute giving it life the
constitutional power is dormant and unavailable to the executive
in regulating the citizenry. Agreeing with the government's brief,
on that point, the federal appeals court held that the Rivers and
Harbors Act imposed an absolute ban on obstructions to navigable
waters. Furthermore, not only had earlier cases shown that the
Corps of Engineers can consider factors other than navigation in
denying permits,6 but the Fish and Wildlife Coordination Act and
administrative policies devised to implement it "unequivocally ex-
pressed [that t]he Secretary must weigh the effect a dredge and
fill project will have on conservation before he issues a permit
lifting the Congressional ban." 7 With the utterance of that state-
ment fell not only the claim of Zabel and Russell to be free to
"sterilize" the bottom of their lands but also the claim of Coastal
Petroleum to mine Lake Okeechobee, no matter what the effect on
the water supply of the state. No doubt, as Coastal Petroleum ar-
gued, plans to exploit other claims embracing multi-millions of
acres of submerged lands elsewhere were blunted as well.

One last forum was to be petitioned before this thirteen-year
saga came to an end: the Supreme Court of the United States. In
preparation for the final bout, new lawyers familiar with Supreme
Court practice were brought in to seek intercession by the high
court on behalf of the landowners. Merely obtaining an audience
with the Court is always problematical however, since it is liter-
ally impossible for nine justices to consider more than a small
percentage of the cases pressed upon them. Pleading with the Court
to issue a writ of certiorari to the Fifth Circuit Court of Appeals
and bring the case up for review, the Zabel-Russell lawyers argued
that their case was a good vehicle for resolving the important public
issues involved. The argument was unconvincing. On February 22,
1971, the petition for writ of certiorari was denied,68 putting an
end to legal recourse for obtaining a permit to add that particular
11.5 acres to the fills in Boca Ciega Bay. In reaction to the Court's
denial of certiorari, Zabel-Russell lawyers are reported to have

66. 430 F.2d at 211.
67. Id.
68. Zabel v. Tabb, 401 U.S. 910 (1971) (denying certiorari).

[i: Ii0



1974] Foundation for Sophisticated Environmental Strategies 141

said, "This is the end of the line. There is no more Zabel-Russell
fill proposal."69

AFrERMATH

Although the full ramifications of Zabel have yet to be felt, sev-
eral direct consequences are clear. Most direct but, ironically
enough, perhaps the least important in the total scheme of things:
11.5 acres of Boca Ciega Bay that once were destined for destruc-
tion have been rescued. Also, under authority of the reinvigorated
federal law, Coastal Petroleum has been halted in its plan to mine
the bottom of Lake Okeechobee. Furthermore, the Corps purports to
be more rigorously exercising its responsibilities, as redefined in the
Zabel-Russell case, to insure that due consideration is routinely
given to applications for the removal of the congressional ban
against obstructions to the navigable capacity of the waters of the
United States. In a tone of some incredulity, the chief conservation
protagonist reports that now she is asked to comment on the
dredge and fill proposals as they are filed for approval.

While from an ecological point of view the Zabel denial of an
11.5 acre fill in Boca Ciega Bay is of minor importance, the legal
precedent it set as to the criteria which applications must meet is
awesome. Even Zabel did not deal with the question of what must
be done about unpermitted fills, however. This point was soon
raised in U.S. v. Moretti,7° a case in which another trailer court
developer was dredging and filling without permit in the Florida
Keys. Appealing a lower court's order to restore the filled area to
its natural condition, the developer argued in the appellate court
that the Rivers and Harbors Act did not authorize a district court
to remove a land fill as a "structure."'" Rejecting that argument,

69. COMMERCIAL FissmIEs REviEw, Feb. 1971.
70. United States v. Joseph G. Moretti, Inc., 331 F. Supp. 151 (M.D. Fla. 1971).

Moretti contains interesting commentary on the actual policing of environmental
regulations and the efficacy of permitting procedures. Two vacationing employees
of the E.P.A. observed the operations at issue and reported the violation upon de-
termining that the operator had no permit.

71. Section 406 of the Act, 33 U.S.C. § 406 (1970), reads in part:
[T]he removal of any structures or parts of structures erected in violation
of [the Act] may be enforced by the injunction of any district court exer-
cising jurisdiction in any district in which such structures may exist, and
proper proceedings to this end may be instituted under the direction of
the Attorney General of the United States.



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

the Fifth Circuit buttressed its Zabel stance by acknowledging that
an order to remove a fill is authorized by the Act, subject to ample
opportunity for the consideration of an "after-the-fact" permit 2

In still another dredge and fill case73 involving substantial un-
permitted alterations of the Weeki Wachi River, a developer argued
a removal order might not be validly issued until the government
has carried the burden of showing that the process of restoration
would not be more harmful than allowing the unpermitted fill to
remain. Because at that time the Moretti appeal was pending, the
court did not give a definitive ruling. It did surmise, however, that
"If the outcome of the appeal in Moretti is favorable to the gov-
ernment, it may well be that a proper order in the present case
would be to compel the defendant to submit further proof of the
lack of feasible restoration rather than compelling the government
to come forward with solutions."74 In view of the eventual Moretti
decision, it seems clear that this proposal should be accepted. The
more disagreeable the terms of after-the-fact settlements become,
the less prone will developers be to ignore the permitting proce-
dure on the assumption that they can later "buy off" their trans-
gressions by payment of money fines. In this respect, Florida's
federal district courts, backed up by the Fifth Circuit, seem bent
on using the Rivers and Harbors Act, as invigorated by Zabel, to
protect wetlands.

Although the whole stew of related environmental measures
cooked up by the fires that kept the Zabel-Russell case going so
long is too thick to digest here, the more important morsels are
worth savoring. In 1967, Florida law was strengthened to require
the taking into account of various environmental factors before
bulkhead lines are set, before dredge and fill permits are issued
and before any of the remaining sovereignty lands are sold. 75 In

72. United States v. Joseph G. Moretti, Inc., 478 F.2d 418 (5th Cir. 1973).
73. United States v. Underwood, 344 F. Supp. 486 (M.D. Fla. 1972).
74. Id. at 495. The court also stated, at 494, that

Where the party causing the injury to navigable waters refuses to remedy
the situation or for some other reason the United States is compelled to
perform the remedy, the government is entitled to the equivalent cost in
damages.

The court cited Wyandotte Transportation Company v. United States, 389 U.S. 191
(1967).

75. FLA. LAws, ch. 67-393, amending FLA. STATS. §§ 253.12, 253.122, 253.124,
and 253.126.

[1: 110



1974] Foundation for Sophisticated Environmental Strategies 143

1968, the so-called Florida public trust doctrine, which purportedly
prohibited sales of sovereignty lands when contrary to the public
interest, was raised to constitutional dignity in the State's new
constitution.76

In view of the meaningless connotation that had previously been
larded on the Florida doctrine by the State Supreme Court, the
people of the state in 1970 voted to modify the constitutional state-
ment of the doctrine. Sales of sovereignty lands are now authorized
only when the sale would be in "the public interest."77 Hence,
there must be a showing of public benefit to be derived from mak-
ing the sale. Although no court interpretation has yet been given
the new doctrine, presumably it requires much more than a mere
showing that the public interest in remaining lands is not harmed,
which was all the Florida supreme court required for a valid sale
under the superseded doctrine.

Also first appearing in 1968, a new section of the Florida con-
stitution proclaimed that it is the "policy of the state to conserve
and protect its natural resources and scenic beauty. 78 In a situation
involving the construction of a nuclear power reactor on Biscayne
Bay the Florida Supreme Court rendered an opinion7

' attaching
substantive meaning to that statement. This holding could signal
a change in the attitude of the Florida court. What could easily
have been passed off as mere froth-policy without sanction-was
given substance by the court.

Acting to protect the remains of Boca Ciega Bay, the Florida
legislature in 1969 enacted a law designating the bay as an aquatic
preserve to be retained, insofar as possible, in an essentially natural
condition so that its biological and aesthetic values may endure for
the "enjoyment of future generations." ° The next legislative move
was to protect larger stretches of the Florida coast. Noting that
"unguided development of [Florida's] beaches and shores coupled
with uncontrolled erosive forces are destroying or substantially
damaging many miles of our valuable beaches each year," the leg-

76. 1968 FLORIMA CONSTITUTION art. X, § 11.
77. Id. as amended November 3, 1970.
78. Id. art. XI, § 7.
79. Seadade Industries, Inc. v. Florida Power & Light Co., 245 So. 2d 209 (Fla.

1971).
80. FLA. STATS. § 268.16(1) (Supp. 1972).



144 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [1: 110

islature in 1970 created a construction set-back rule"' forcing ex-
cavation and construction projects away from mean high water on
much of Florida's coast. It was also 1970 that saw TIIF given the
authority to acquire submerged lands through condemnation and
return them to the public domain for public use. 2

The year 1972 saw a giant step forward in gaining control over
land use in Florida. It was then that the citizens of the state voted
to approve the issuance of $200 million in bonds to purchase en-
vironmentally endangered lands.8" It was also in that year that the
legislature passed the Environmental Land and Water Management
Act,"4 requiring that protections be provided "areas of critical state
concern" and also imposing controls on "developments of regional
impact." Although the details of these programs are not to be ex-
amined here, suffice it to say that they could be the springboard
for attaining comprehensive, state-wide land use controls.

The same tempest that sculptured so many public interest hand-
holds in the previously obdurate body of private interest Florida
law was also working simultaneously on the national level. Of a
number of important changes made in federal law during the
Zabel-Russell era, the 1969 addition of the National Environmental
Policy Act (NEPA) is probably the most important in protecting
the natural environment from unthinking exploitation. In enacting
NEPA, Congress stated several purposes, including:

To declare a national policy which will encourage productive
and enjoyable harmony between man and his environment; to
promote efforts which will prevent or eliminate damage to the
environment and biosphere and stimulate the health and wel-
fare of man .... 85

NEPA's operative thrust is a mandate that environmental factors
be considered in planning federal actions that significantly "affect
the quality of the human environment." Already the law books are
brimming with cases in which federal judges have insisted that
NEPA's strictures be adhered to. To name but one, the Zabel

81. Id. § 161.052 (Supp. 1972).
82. id. § 253.02 (Supp. 1972).
83. Land Conservation Act of 1972, FLA. STATS. ch. 259 (Supp. 1973).
84. Environmental Land and Water Management Act of 1972, FLA. STATS. ch.

380 (Supp. 1973).
85. 42 U.S.C. § 433 (1970).



1974] Foundation for Sophisticated Environmental Strategies 145

opinion says that issuing, dredge and fill permits is a federal action
of the sort that must conform to NEPA's requirements.

The dredges have been stilled in Boca Ciega Bay and they have
been quieted over much of Florida and, presumably, the whole
country-at least temporarily. The qualification is necessary. While
it is true that Zabel and related happenings have slowed and
stopped some dredges, they have not destroyed them. And, while
it is true that dredge and fill permits have been made difficult to
obtain, they have not been outlawed. 6 Furthermore, thousands of
acres of bottomlands remain in private ownership stemming from
sales made long ago under the early laissez-faire laws that ignored
the environment and pampered economic development. The upshot
is that the ingredients for devastation still exist: submerged lands
in private ownership under a system of laws that will permit dredge
and fill operations given the satisfaction of designated conditions.

The principal effect of this set of circumstances may be to shift
the strategic role over to vested economic interests. Driven into
regulation by the sword of public interest, vested interests will
now turn their wits and resources to "beating" the system. So long
as money is to be made in creating dry land out of wet, someone
will press to do it. So long as minerals lie under navigable waters,
protection of the public's water supply notwithstanding, someone
will push to dig them out. And, so long as a system of permitted
uses exists without a master plan for environmental use and re-
source development, abusive projects will be approved. One con-
sequence of Zabel is bound to be the generation of much activity
directed to securing such approval.

In reiteration of what is implicit throughout this paper, Zabel
represents an important triumph of the public interest over vested
economic interests. The public interest banner for the most part was
carried by a doughty band of concerned citizens, joined early by

86. Several deficiencies exist in the Rivers and Harbors Act's permitting scheme.
Perhaps the most important is the absence of a clear mandate to the Corps to investi-
gate and report violations. Linked to that is the fact that court action must be insti-
tuted by he office of the United States Attorney General, rather than by the Corps. 33
U.S.C. § 406 (1970). Enforcement could be greatly assisted by the Congress' man-
dating an investigatory function to the Corps and also placing civil enforcement pro-
cedures in its hands. Furthermore, close review should be given the Corps' after-the-
fact permit regulations. Although not removing an illegal fill may be the better course
of action in some instances, the law should be amended to continue the sovereignty
easement upon the filled-in land.



146 COLUMBIA JOURNAL OF ENV1RONMENTAL LAW [1: 110

a group of local officials and late, under pressure of immense public
outcry, by the agents of Congress. One cannot assume, however,
that all is now well on the environmental front because federal
protectors have been appointed. In a real sense, they did not
assume their protective role of their own volition; they were kicked
into it. Moreover, regulators are more urgently courted by the
regulated than by the countervailing interests and regularly are
captured by them, reversing their role from regulator to protector.
Who, then, will watch the appointed watchers? Perhaps the answer
to this question is the cornerstone of all strategies for achieving
environmental goals. The present answer is unsatisfactory, but clear.
To the private citizen concerned with protection of the environment
falls the duty of ceaseless vigilance.