
USCA1 Opinion

	




                            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                                          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                                          2          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                                          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                                         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).                                          4          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                                          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).                                            5          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                                          6          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                                          7          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                                          8          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.)).           ______    ________                                          9                    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.                                          10          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                                          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.          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.                                          11
