CONFERRING JURISDICTION UPON THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DIVISION OF THE SOUTHERN DISTRICT OF CALIFORNIA TO HEAR, DETERMINE, AND RENDER JUDGMENT UPON THE CLAIM OF FRANK HAEGELE JULY 25, 1949.-Committed to the Committee of the Whole House and ordered to be printed Mr. KEATING, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 733] The Committee on the Judiciary, to whom was referred the bill (H. R. 733) to confer jurisdiction upon the United States District Court for the Central Division of the Southern District of California to hear, determine, and render judgment upon the claim of Frank Haegele, having considered the same, report favorably thereon with amendments and recommend that the bill do pass. The amendments are as follows: Strike out all after the enacting clause and insert in lieu thereof: That jurisdiction is hereby conferred upon the United States District Court for the Central Division of the Southern District of California to hear, determine, and render judgment upon the claim of Frank Haegele, of Seal Beach, Calif., for damages sustained as the result of the alleged destruction of oyster beds destroyed by the acquisition and relocation of the sloughs by the ammunition depot of the Navy at Anaheim Landing, county of Orange, Calif., dredging for which started April 28, 1944. SEC. 2. Suit upon such claim of Frank Haegele may be instituted at any time within one year after the enactment of this Act, notwithstanding the lapse of time or any statute of limitation. Proceedings for the determination of such claim, appeals therefrom, and payment of any judgment thereon, shall be in the same manner as in the cases over which such court has jurisdiction under the provisions of paragraph twentieth of section 24 of the Judicial Code, as amended. Amend the title so as to read: A bill to confer jurisdiction upon the United States District Court for the Central Division of the Southern District of California to hear, determine, and render judgment upon the claim of Frank Haegele. The purpose of the proposed legislation is to confer jurisdiction upon the United States District Court for the Central Division of the 94245-49 Southern District of California to hear, determine, and render judgment upon the claim of Frank Haegele, of Seal Beach, Calif., for damages sustained as the result of the alleged destruction of oyster beds destroyed by the acquisition and relocation of the sloughs by the ammunition depot of the Navy at Anaheim Landing, county of Orange, Calif., dredging for which started April 28, 1944. STATEMENT OF FACTS Mr. Haegele claims to have sustained damage to his oyster beds as the result of dredging operations to provide an entrance channel and inner harbor for loading and unloading ammunition by water at the United States naval ammunition and net depot, Seal Beach, Calif., conducted under a Navy Department contract. More particularly, Mr. Haegele claims that his oyster beds were destroyed by the accumulation thereon of silt and mud from the effluent of dredged spoil deposited in a disposal area adjacent to his oyster grounds. The Navy Department is opposed to the enactment of the bill for a direct appropriation of $40,000 to cover these damages. However, your committee is of the opinion that there is merit to the claim, but is unable to decide as to the extent of damages. Therefore your committee is of the further opinion that the case should be decided by the courts and consequently recommends the enactment of the bill, as amended, to confer jurisdiction upon the United States District Court for the Central Division of the Southern District of California. Hon. EARL C. MICHENER, NAVY DEPARTMENT, OFFICE OF THE JUDGE ADVOCATE GENERAL, Chairman of the Committee on the Judiciary, House of Representatives. MY DEAR MR. CHAIRMAN: The bill (H. R. 5342) for the relief of Frank Haegele was referred by your committee to the Navy Department with request for a report thereon. The purpose of the bill is to authorize the payment to Capt. Frank Haegele, Seal Beach, Calif., of the sum of $40,000 in full settlement of his claim against the United States for the destruction of his oyster beds alleged to have been caused by the acquisition and relocation of the sloughs by the ammunition depot of the Navy at Anaheim Landing, Orange County, Calif. Mr. Haegele claims to have sustained damage to his oyster beds as the result of dredging operations to provide an entrance channel and inner harbor for loading and unloading ammunition by water at the United States naval ammunition and net depot, Seal Beach, Calif., conducted under a Navy Department contract. More particularly, Mr. Haegele claims that his oyster beds were destroyed by the accumulation thereon of silt and mud from the effluent of dredged spoil deposited in a disposal area adjacent to his oyster grounds. In November 1944 Mr. Haegele submitted to the Navy Department, through his attorney, a claim for $200,000 for the destruction of his oyster beds, comprising 80.65 acres. In support of the claim it was stated that the claimant acquired the oyster beds on June 1, 1931; that from that time to the date of the filing of the claim the claimant had at intervals harvested a limited amount of oysters and had cultivated and nurtured the propagation and development of said oyster beds; and that at the time of the acquisition and taking over by the Navy there were in said beds conservatively 500,000 bushels of oysters, estimated on the natural growth and development and figured on the same ratio as the growth from the planting up to the month of March 1932, at which time Harvey C. McMillin of the United States Bureau of Fisheries, after making careful study of the area, estimated that there were between 50,000 and 100,000 bushels of oysters as of that date. Because of the amount involved, the Navy Department engaged Dr. R. V. Truitt to visit the west coast to investigate the merits of Mr. Haegele's claim. Dr. Truitt is the director of the department of research and education for the State of Maryland and is an internationally known marine biologist who has served the Navy Department on a dollar-a-year basis as consultant in connection with similar matters. Dr. Truitt spent several weeks on the west coast investigating Mr. Haegele's claim and submitted an extensive written report of his investigation to the Navy Department. On the basis of Dr. Truitt's report the Navy Department determined that Mr. Haegele's claim was without merit and accordingly refused to recommend payment thereof. Dr. Truitt's investigation, which was conducted in the spring of 1945 was concerned primarily with the degree of injury claimed to have been suffered by oysters on the charted beds held by Mr. Haegele in Anaheim sloughs and the extent, if any, of responsibility of the Navy Department for such injury. The following are pertinent excerpts taken from Dr. Truitt's report. "The history of oyster production in Anaheim sloughs discloses many attempts to obtain crops from natural yields, from the planting of oyster seed, and from the use of cultch, i. e., material, such as shells, glass, etc., to secure young or seed oyster sets. Two big practical attempts have been made (Capt. J. H. McGarvin, 1886, for the Bixley interests, and Capt. William Hillyard in 1895-1905) at oyster culture in the sloughs by importing Chesapeake Bay seed oysters, Ostrea virginica, and planting them. Mr. Fred Bixley, nearby resident and former owner of most of the area under investigation (whose antecedents acquired it in pioneering days), advised that the attempted culture of introduced oysters as well as efforts to develop the native species, Ostrea lurida, had led to abject failure. Mr. Bixley observed that, in addition to the McGarvin attempt, he and his father (dating back to the 1860's) had had several minor failures in shell as well as seed plantings in the sloughs. Local watermen and older residents of the area were interviewed to obtain the background of oyster production in the sloughs and there seemed to be no local knowledge to the effect that the areas in question have ever supported dense populations of oysters with a consequent sizable oyster business. There was a common and general opinion among the persons interviewed that "wild oysters," those grown by natural seeding and survival, have been present, though not abundant, in certain sections of the sloughs and that occasional small harvests have been realized since the days of the earliest settlers." * "Mr. Haegele held, in attempting to forward the fact-finding effort of the investigator, in a personal interview on April 28, 1945, that he had sustained great loss, $200,000 or more, to his oyster business as a result of the installation of the ammunition and net depot * * * especially from silting following dredging operations. His statements concerning same were recorded concurrently and with his permission. They were (1) I have worked these oyster beds for about 30 years, and I have had possession of them for 15 years. (2) To make them productive, I have cultivated them by keeping them clean-clear of sediment and growths of all kinds-and by using shells, sticks, stones, rubber, metal, and other things for catching (setting) of young ones. I had to break these things up when I got a catch because they often were too thick and I then planted them back on good bottoms. (3) I wasn't able to get help after the effects of the war came in 1940 to do the work and I didn't keep up the beds to full production (most of the labor being Japanese), since I had to do all of it myself and, because I worked at the brewery, I had only Sundays, and once in a while a weekday. In earlier times, I used two or three men off and on during the season, sometimes maybe five working part time. (4) In the earlier days, I sold the oysters on the general market at a high price, sometimes as much as $5 a bushel. The last few years, when times got better and labor hard to get, I sold them to the Japs who got them up themselves; they give me $1 a bushel when they took them that way. (5) I have from $8,000-$12,000 invested in equipment and outfittings for oystering. I used three boats, a motor, a dredge and rake, anchors, lines and the like. (6) I improved my business by purchasing a good big shipment of Japanese seed when I got the beds and again later on, and I have planted quite a few eastern oysters. Both did very well, but the "Japs" were better a lot. I don't recall dates of these plantings. (7) No, I have never worked full time in oyster business. It has been a side line, but I have given it a lot of time and work. (8) I really don't have the accounts to show you. I didn't keep the records. I have never kept records on this or much of any kind of thing I do. My pictures are a kind of a record. (9) I can't recall the people or firms, mostly restaurants and the like, I sold oysters to but they were good sales. Some went to wholesalers in Long Beach or Los Angeles. I'd rather pay cash and use cash. (10) My best recollection of my income was in the thirties. I made as much as $6,000, and one or two years, I made as much as $8,000. No, I don't have records, but I can remember-these figures are correct, I know. (11) No, the beds were not the same all over. Some places, soft ones, were used to get seed on rubber, metal, etc., and others to grow the seed for sale. (12) All of this is gone. I have no income from oysters because the Navy dredging ruined my investment and the oysters I had grown.' * "This investigation into the facts of the Haegele claim was made difficult by his failure to have kept records. It was not possible to get from him a single recorded fact relative to the many transactions he reported and discussed freely, except for pictures (discussed later in this report) purporting to show the abundance and quality of his oysters. Inquiry in the area, inspection of official State and Federal records and a very exact scientific survey of the oyster holdings (charted bottom) failed quite generally to support the claim and Mr. Haegele's several statements concerning his operations and his estimates of income. An analysis of Mr. Haegele's statements as they bear on the claim is offered at this point. "Mr. Haegele has lived in the Anaheim area for 30 or more years and he has controlled the bottoms under consideration since 1931. His official designation as a waterman, all of whom connected with fishery enterprises are required by law to register, has been 'bait dealer.' He has never registered in the department of conservation as an oyster farmer nor has he ever reported his yields or other transactions as an oysterman as required by the California Fish and Game Code, article 5, 1091. * * * In this connection, it should be pointed out that the State of California has the most comprehensive system for the gathering and recording of fishery statistics found in the United States, being considered a model in this field world-wide. To bypass such a system even by a small operator would be difficult. For an industry of the magnitude reported by Mr. Haegele, income up to $8,000 a year and with 500,000 bushels of oysters on the bottom, to go unnoticed by the field officers of the department and by the division of statistics would seem impossible. "An oyster abundance of 1,000 bushels to the acre is considered a very dense population on either natural reefs or on cultivated beds. At the quantity indicated in the claim, there were in said beds conservatively 500,000 bushels of oysters,' the density of the population would have been approximately 6,200 bushels per acre, or six times greater than either practical experience or scientific management produces on the better beds in America." "The equipment used in the Haegele operations was exceedingly simple and inexpensive. The three rowboats claimed to have been employed were simple of construction and it is estimated that, in their day, they cost not in excess of $50 each. The dredge, totally inadequate, as were the boats, for an industry that harvested even the quantity of oysters given in Mr. Haegele's lowest estimate, 6,000 bushels per year, was a crude home-made affair. There was no oyster house, no dock or other facilities for the handling of the oysters. The motor appraised by Mr. Haegele was not seen but was indicated to have been an outboard type which had previously been sold. Allowing full commercial price for it, and for the diverse equipment, including boats and all the devices pointed out as having been used in the oystering operations, the outside estimate, liberally arrived at, for the materials and facilities for the conducting of the business was $500 as over and against Mr. Haegele's statement that he had from $8,000$12,000 invested in equipment. * "In the formal claim submitted by Mr. Haegele, estimated injury was determined in part upon projected natural increments of oysters as based on the statement the month of March 1932, at which time Harvey C. McMillian, of the United States Bureau of Fisheries, after making careful study of the area, estimates that there was between 50,000 and 100,000 bushels of oysters as of that date. See West Coast Fisheries March 1932, page 43.' * * It has not been possible to establish as fact this record attributed to Mr. McMillian since there appears to be no printed statement to this effect in Bureau of Fisheries publications; in fact, there is no record of investigations of the Anaheim sloughs ever having been made by a representative of that agency. Dr. Paul S. Galtsoff, coworker and director of Mr. McMillian's researches, and head, Division of Oyster Inquiry, Bureau of Fisheries (now U. S. Fish and Wildlife Service) advises that the Bureau's agents have not made a study of oyster conditions in Anaheim sloughs. The article in question was based upon a release from Mr. Haegele and not upon a release from the Bureau of Fisheries." * * * * * "As already indicated, pictures were submitted to indicate productivity of the beds by Mr. Haegele, upon his own suggestion, and loan of the negatives of the three pictures shown was granted in order that they might be developed, evaluated, and used as evidence in support of the claim. They were developed in the laboratory of the Maryland Department of Research and Education, at Solomons Island, Md. While these pictures 'showing oyster abundance' were accepted at the time as fact, upon their enlargement and magnification it developed that they were not of oysters. Rather, they were pictures of the common scallops so very abundant throughout the sloughs. * * * "The claim that Japanese seed (Östrea gigas) and eastern seed (Ostrea virginica) oysters, in big quantities, have been planted by Mr. Haegele was investigated, since the claimant, again, could offer no specific records. He indicated that his memory was not clear either as to date or quantity, except that he had planted 'a good big shipment of Japanese seed, and again later on another. I have planted quite a few eastern oysters.' Registry of importation and exportation of seed oysters in California is required. Records in the division of game and fish for such transactions in the Haegele operations showed that only five cases of Japanese oysters, about 10 bushels, approximate value of $25, were obtained, these in 1932. No eastern oysters have been registered by Mr. Haegele in the division. Such registration was initiated in 1930 and the regulation has been in effect up to the present time, thus antedating as well as covering the entire period of Mr. Haegele's purported activity as a planter. In this connection, it should be pointed out that Japanese oysters do not naturally propagate, i. e., reproduce, in west coast waters, thus if and when the five cases of seed in question were harvested that stock was brought to an end. This should have taken place within 2 years or by 1934. Extensive sampling of the oyster beds in this study disclosed a single shell of a Japanese oyster, one that had been badly eroded by time. No other trace of either Japanese or eastern oysters was found in the survey. * * Mr. Haegele did not report to the internal revenue office returns from an oyster business during the period under consideration here, that is, from 1930 to 1944, a fact at variance with the claim made and repeated statements in support of it. "The subject oyster bed, 80.65 acres, in Anaheim sloughs, was examined in detail to determine: (1) the abundance of living oysters on it; (2) the quantity of oysters that had died during the period since the initiation of the depot construction work; (3) the nature and the quality of the bed for oyster farming purposes; (4) the facts of siltation, if any, from the Navy's construction program and (5) the relationship, if any, between siltation and oyster mortality. To this end the best procedures and equipment for scientific research were brought to the problem." "The magnitude of this claim and the tenets upon which it is based, as expressed formally in the document and as recited by Mr. Haegele to the investigator seeking factual information upon which to base conclusions as to injury, seem irreconcilable with the facts developed during the inquiry. In concluding this report on the investigation, it seems unnecessary further to review and contrast the incompatible items of history, biology, economics, statistics, and business management concerned. Absence of records concerning costs of operations and of seed oysters, the quantities and types of seed allegedly used, labor requirements, sales, income, etc., does not make it possible to estimate directly and in the usual way the extent of injury caused by siltation from naval operations. From the data accrued in this study, however, it is estimated: (1) That at the start of the Navy's installation at Anaheim there were a maximum of 984 bushels of oysters on the Haegele bed; (2) That approximately 529 bushels of these oysters were killed through siltation originating from the installation; (3) That the greatest expectation of yields from the bed, unrestricted, would not exceed 50 percent of the total population (984 bushels), or 492 bushels in a given year; (4) That on a sustained natural yield basis, that is, year-in and year-out production by favorable natural processes, the harvest would be from 30 to 40 percent of the total (984 bushels), or yields ranging from 295 bushels to 394 bushels annually; (5) that 101⁄2 acres of the 80.65 total Haegele holding were or had been oyster populated during the period 1941–45; |