United States of America v. JOSEPH and ALICE PAULEY MORRISON

*Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.
NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 06a0279n.06
Filed: April 26, 2006
No. 05-1552
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSEPH and ALICE PAULEY
MORRISON,
Defendants-Appellants
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN
BEFORE: DAUGHTREY AND GILMAN, Circuit Judges; RUSSELL, District Judge *
RUSSELL, District Judge. Defendants-Appellants Joseph and Alice Pauley
Morrison (“Morrisons”) appeal the decision of the Eastern District of Michigan in upholding the
recommendation by the Magistrate Judge that the Plaintiff-Appellee United States of America
(“Government”) had territorial jurisdiction over the Morrisons’ property located on Harsens
Island, Michigan.
BACKGROUND
In its complaint, the Government asserts that in June of 1994, the Morrisons either

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“performed or caused to be performed” actions within U.S. waters by either “trenching, grading
or filling wetlands” on their property located at 3010 Green Drive, Harsens Island, Michigan.
Specifically, the Government alleges that the Morrisons conducted an illegal fill in the wetlands
by depositing and grading fill material into that area, and by digging, repairing and then re-
burying a broken water line located in that area. The United States Army Corps of Engineers
determined that the land in question qualified as a “wetland” as defined by the Clean Water Act.
The wetlands in question are adjacent to the St. Clair River. The Morrisons do not dispute
that fact in this appeal. In its complaint, the Government also claims that the wetlands are
considered part of the United States for purposes of 33 U.S.C. §1344 of the Clean Water Act.
The Morrisons dispute that fact in this appeal, claiming the land does not fall under US
jurisdiction for purposes of the Clean Water Act.
The land in question involves territory that was disputed in the past between the United
States and British Canada. In 1828, following an agreement on a border between the United
States and British Canada, the American Land Board recognized the claim of Jacob Harsens
(“Harsens”) to the upper part of the island (“surveyed land”), providing him with patents that he
accepted at that time. In 1837, Michigan became a state of the union. Thirteen years later in
1850, the U.S. Congress passed the Swamp Land Act, which granted certain states title to all
swamp lands within their borders; Michigan was one of the states included by Congress in that
Act. In 1910, the Supreme Court of Michigan determined that the “unsurveyed land,” or lower
part of Harsens Island, belonged to the state of Michigan as set forth by the Swamp Land Act.
STANDARD OF REVIEW
The Court reviews the district court’s grant of summary judgment de novo, using the same
standards applicable to the district court. City Management Corp. v. U.S. Chem. Co., 43 F.3d

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244, 250 (6th Cir.1994). Summary judgment is proper if the evidence submitted shows that
there is no genuine issue of material fact and that the moving party is entitled to judgment as a
matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This Court must view the
entire record in the light most favorable to the non-moving party. Smith v. Chrysler Corp., 155 F.
3d 799, 804 (6th Cir. 1998). On appeal, the Court will not generally consider new arguments
that were not presented to the district court unless such failure to consider the issue will result in
a miscarriage of justice. Roush v. KFC Nat'l Management Co., 10 F.3d 392, 397 (6th Cir. 1993).
ANALYSIS
In 1828, when Harsens received his patents from the federal government for the land, the
federal government held title to the surveyed wetlands. The fact that the patents provided to
Harsens came from the United States demonstrates that the United States had made its claim to
the island. Today, all of the island is part of the territorial jurisdiction of the United States as it
has been a part of the state of Michigan since 1837, when Michigan joined the union. As such,
the United States has territorial jurisdiction under the Clean Water Act over the surveyed lands
because these wetlands belong to the United States.
The title for the unsurveyed wetlands belongs to the state of Michigan. The state of
Michigan is a part of the territorial jurisdiction of the United States for purposes of the Clean
Water Act. Consequently, title to the unsurveyed wetlands in question belongs to the state of
Michigan, and Michigan falls within the territorial jurisdiction of the United States for purposes
of enforcing the Clean Water Act.
The United States Supreme Court has held that there must be a “significant nexus” between
a wetland and navigable waters in order for the Clean Water Act to apply. Solid Waste Agency of
Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 167 & 173 (2001)

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(“SWANCC”). The Court in SWANCC stated that “Congress’ concern for the protection of water
quality and aquatic ecosystems indicated its intent to regulate wetlands ‘inseparably bound up
with the ‘waters’ of the United States.’” SWANCC at 167; quoting United States v. Riverside
Bayview Homes, Inc., 474 U.S. 121, 134 (1985) (“Riverside”). The Court held that there must be
a “significant nexus” between the wetlands and navigable waters in order for the United States to
have jurisdiction over the wetlands in question. SWANCC at 167. A significant nexus between a
wetland and a body of water occurs when a wetland is adjacent to a navigable body of water. Id.;
Riverside at 133-135. The Clean Water Act, under 33 U.S.C. §1362 (7) & (8) defines “navigable
waters” as “the waters of the United States.” In Riverside, the United States Supreme Court
specifically mentioned wetlands that are adjacent to a river as falling within the coverage of the
Clean Water Act. Id. at 134.
In the instant matter, regardless of whether or not the property of the Morrisons is a part of
the unsurveyed or surveyed wetlands, both wetlands are adjacent to the St. Clair River. Under
the definition of a navigable body of water as defined by the Clean Water Act and noted by the
Supreme Court in Riverside, the St. Clair River is a navigable body of water within the United
States. Accordingly, a significant nexus exists between the wetlands and the St. Clair River.
Therefore, the United States has territorial jurisdiction over the Morrisons’ property for purposes
of enforcing the Clean Water Act.
CONCLUSION
The District Court did not err when it adopted the report and recommendation of the
Magistrate Judge in determining the matter of territorial jurisdiction. Therefore, we AFFIRM
the order of the District Court adopting the report and recommendation of the Magistrate Judge,
and hold that the Government has territorial jurisdiction over the Morrisons’ property.

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