Lewis v. United States of America

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

GARRY LEWIS, BRENDA GAYLE LEWIS,

G. LEWIS LOUISIANA, LLC, ROBERT

BEARD, CAROLYN MILTON, AND TOWN .

OF LIVINGSTON, LA

CIVIL ACTION

VERSUS

NO. 17-1644-JWD-RLB

UNITED STATES OF AMERICA AND

UNITED STATES ARMY CORPS OF

ENGINEERS

RULING AND ORDER

This matter comes before the Court on the Motion for Partial Summary Judgment, (Doc.

35), by Plaintiffs, Garry Lewis, Brenda Gayle Lewis, G. Lewis Louisiana, LLC, Robert Beard,

Carolyn Milton, and Town of Livingston, LA (collectively “Plaintiffs” or “Lewis”), 1 under Rule

56. Defendants, United States of America and United States Army Corps of Engineers (“Corps”)

(collectively “Defendants” or “United States”), opposed the motion. (Doc. 48). Plaintiffs replied.

(Doc. 56). Oral argument is not necessary. For the following reasons, the motion is denied without

prejudice. The Magistrate Judge is asked to hold a status conference with the parties to discuss an

appropriate time frame and scheduling order to facilitate the timely remand of this matter to the

Corps to conduct further proceedings consistent with this Ruling and Order.

1 The Court notes that the pleadings and memoranda frequently do not distinguish among the various Plaintiffs or to

whom “Plaintiffs” or “Plaintiff” is in reference. The same holds true with references to “Defendants” and

“Defendant”.

I. PROCEDURAL AND FACTUAL BACKGROUND AND REGULATORY

FRAMEWORK

A. Procedural and Factual Background

Plaintiffs filed their initial Complaint on November 9, 2017. (Doc. 1). Plaintiffs own certain

real property in Livingston Parish and claim that they have been damaged by Defendants’ conduct

with respect to 19 acres known as “Milton Lane”. (Doc. 1, p. 1). Plaintiffs claim that the Corps

declared regulatory jurisdiction over some of the land pursuant to the Clean Water Act (“CWA”)

and obstructed connection to municipal water supplies. (Id.). Plaintiffs further allege that the

Corps “regulates Plaintiffs’ freedom to use and enjoy said lands, such as restricting water supply

utilities, normal timber harvesting, and development for needs of people of Livingston Parish.”

(Doc. 1, p. 2). Plaintiffs further claim that the “federal regulatory agencies involved” obstructed

Plaintiffs’ appeal rights regarding the Corps’ actions, thereby allegedly depriving Plaintiffs of the

due process of law. (Id.).

Defendants responded to Plaintiffs’ original Complaint with a motion for partial dismissal

on February 5, 2018. (Doc. 13). Defendants challenged some of Plaintiffs’ claims under Rule

12(b)(6) for failure to state a claim upon which relief may be granted. This Court granted the

motion in part and denied the motion in part. The Court dismissed Counts II (the alleged bias of

Defendants) and III (claim of estoppel) of the Complaint and dismissed Counts IV (unreasonable

delay) and V (an alleged “invalid” cease-and-desist order) as to the EPA. Plaintiffs were ordered

to amend their Complaint consistent with the Court’s ruling. (Doc. 22).

Plaintiffs amended their Complaint on September 6, 2018. (Doc. 23). Plaintiffs set forth a

detailed “summary of facts” in their First Amended Complaint. (Doc. 23, pp. 5-23). The

following is a summary of Plaintiffs’ enhanced factual allegations.

On November 4, 2014, Lewis requested from the Corps a jurisdictional determination

concerning Milton Lane. (Doc. 23, p. 5). The reason for the request was to prepare to begin

construction of a water line. (Doc. 23, p. 6).

Plaintiffs allege that the Corps did not “promptly” respond to the request in accordance with

their own published guidelines. (Id.). Plaintiffs specifically allege that Defendants’ response

“should have been due on January 2, 2015.” (Doc. 23, p. 7).

Defendants allegedly made a visit to the “site”; however, Plaintiffs aver that Defendants

focused on parts of land outside of the area at issue. Because Defendants allegedly made

references to improper logging operations, Plaintiffs claim that they asked the Corps to “do an

additional [jurisdictional determination]” on the additional land to attempt to eliminate

Defendants’ concerns. (Id.).

On October 5, 2015, “Plaintiffs” met with “multiple top[-]level representatives of

Defendants,” who agreed to give the request for a jurisdictional determination “top priority”. (Doc.

23, p. 8). On October 14, 2015, the Corps issued a preliminary jurisdictional determination stating

that the property “may be” subject to the Corps’ jurisdiction. On October 26, 2015, Defendants

accepted a permit application concerning activities that Plaintiffs wished to conduct on the

property, “including [constructing] a water tower and water lines to serve both existing and future

uses.” (Id.).

On November 6, 2015, the Corps requested Environmental Protection Agency (“EPA”)

concurrence that a “logging operation” on the property did not qualify for the CWA’s silviculture

exemption. (Id.). The Corps’ memorandum noted that a proposed project at the site included a

“water tower and utility line project that will provide water to houses to the north.” (Id.; Doc. 1-

19).

On November 25, 2015, the EPA responded to the Corps’ November 6th request, agreeing

that the operation did not fall within the exemption. (Id., p. 9; Doc. 1-20). After receiving this

letter, the Corps issued a cease and desist letter dated December 4, 2015. (Id., pp. 9-10; Doc. 1-

14). The cease and desist letter states that the Corps “has reason to believe, and alleges, that you

[Garry Lewis] are responsible for the recent deposition of fill material into a wetland … resulting

from the excavation and side casting of material from a waterway locally known as Switch Cane

Bayou.” (Doc. 1-14, p. 3). The “cease and desist” letter goes on to state that Section 404 of the

CWA prohibits the discharge of fill materials into a waterway unless authorized by a permit. The

letter then orders Plaintiffs to cease and desist from such activity until a permit is obtained. (Id.).

Plaintiffs allege that the “cease and desist” letter is referencing silviculture activities that Plaintiffs

allege are not prohibited by the CWA. (Doc. 23, p. 9).

Plaintiffs allege that instead of “processing the [permit application to build the water tower

and water lines] request,” the Corps issued a cease and desist order “based on logging …

technicalities,” thereby denying Plaintiffs’ rights to construct a water tower and utility line to

provide access to water. (Doc. 23, p. 9). Plaintiffs allege in the First Amending Complaint that

the EPA’s response letter on the silviculture exemption and the Corps’ “cease and desist letter”

referred to different tracts of land than those included in the permit application “under review” and

for which the judicial determination and permits were requested. (Doc. 23, pp. 9-10). Plaintiffs

identify various items of correspondence that allegedly misconstrue the significance of the EPA

letter and aver that this “Honorable Court (conceded to by EPA counsel) has ruled the EPA letter

has no legal effect, and thus dismissed EPA from this action …. Plaintiff[s] request[] the Court

on its own motion to set aside this [cease and desist order] based upon the pleadings and exhibits.”

(Doc. 23, pp. 10-11).

Plaintiffs allege that they were denied a proper hearing regarding the “logging activities”.

(Doc. 23, pp. 12-13). Plaintiffs claim that they were denied a proper mapping of the wetlands;

instead, “Defendant” “merely said 38% of the tract was wetlands.” (Doc. 23, p. 14). Plaintiffs

further aver that “Defendant” violated due process in refusing to process a permit to allow a dry

tract to be used as emergency flood housing. (Id.).

In September of 2016, Plaintiffs requested an appealable jurisdictional determination which

was not answered. Plaintiffs plead the “equitable principal of ‘action delayed is action denied.’”

(Doc. 23, p. 16). Plaintiffs aver, “[t]heir finding of jurisdiction is final, occurred without so

establishing same by judicially required tests, and equitable estoppel should prevent them from

seeking remand for them to do it now and waste more time.” (Id.).

Plaintiffs aver that the Corps “has asserted its offensive conduct was actually a determination

of silviculture non-compliance by EPA contained in an EPA letter dated November 25, 2015 or

facilitated by that EPA as a determination.” (Doc. 23, p. 2). Plaintiffs claim that the “court has

ruled there was no such determination”. (Id. (citing Doc. 22, pp. 19-20)). The present dispute

arises “because Corp[s] has declared regulatory jurisdiction over Satsuma lands under the Clean

Water Act.” (Doc. 23, p. 2).

Plaintiffs allege that “Defendants are unlawfully, unconstitutionally, inequitably[:] (1)

obstructing needed construction of a municipal water project to replace contaminated well water[;]

(2) obstructing Timber farming/silviculture on the lands[;] (3) obstructing the land[’]s use for

housing and development[;] and (4) … since May 2014, in conscious disregard of Plaintiffs[’]

collective damages enabled an adjacent Waste management facility to operate and pollute and fill

conceded wetlands by intentionally enforcing the CWA unequally[.]” (Id.). Further, Plaintiffs

contend that Defendants “intentionally delayed, damaged Plaintiffs and even obstructed appeal

rights.” (Id.).

Plaintiffs, Town of Livingston, Robert Beard, and Carolyn Milton, allege rights in Milton

Lane and “desir[e] to use these property rights to serve this area with pure water to replace

contaminated water.” (Doc. 23, p. 3). Plaintiffs request the Court’s[:] “(1) declaratory

determination that Federal jurisdiction is absent under the CWA and judicial interpretation thereof

requiring regulated wetlands be at the same time ‘adjacent’ and ‘significantly connected’ to

regulated Federal waters[;] … (2) declaratory determination that a … percentage estimate of

wetlands identification of the whole lands is an unlawful failure to delineate boundaries of wetland

thereby restricting use of ‘non-wetlands’[;] (3) … staying of all actions of Defendants [as]

unlawful and commanding timely actions where lawful, and (4) setting aside an unlawful or

unconstitutional Cease and Desist order[;] (5) [granting] [m]onetary relief for damages caused by

unlawful conduct where appropriate, or retain jurisdiction thereover until ripe under the Federal

Tort Claims Act”. (Id.).

Defendants responded to Plaintiffs’ First Amended Complaint with a second motion for

partial dismissal, (Doc. 26), that was granted in part and denied in part, (Doc. 30). The Court

dismissed Plaintiffs’ regulatory taking claim without prejudice and dismissed Plaintiffs’

procedural due process claim as to the right to access drinking water with prejudice. (Id.).

Plaintiffs now move for partial summary judgment. (Doc. 35). Plaintiffs seek a ruling under

Rule 56 that: (1) Defendants do not have jurisdiction over Plaintiffs’ property under the Clean

Water Act (“CWA”); and (2) that the Corps’ cease and desist orders stopping silviculture activities

be set aside. (Doc. 35-1, p. 3). Since filing their motion for partial summary judgment, Plaintiffs

also moved for leave of Court to amend the complaint a second time. (Doc. 38). The motion

seeking to amend the complaint is still pending. Also pending is Defendants’ motion for summary

judgment. (Doc. 47).

B. Regulatory Framework

With certain exceptions, the CWA makes unlawful the “discharge of any pollutant by any

person.” See 33 U.S.C. § 1311(a). “Discharge of a pollutant” includes “any addition of any

pollutant to navigable waters from any source point,” and “pollutants” include “dredged spoil, …

rock, sand, [and] cellar dirt[.]” 33 U.S.C. §§ 1362(6), 1362(12)(A). “Navigable waters means the

waters of the United States[.]” 33 U.S.C. § 1362(7); see also Rapanos v. United States, 547 U.S.

715, 730-31 (2006) (CWA’s definition of “navigable waters” is “broader than the traditional

understanding of that term,” but the word “navigable” is not “devoid of significance”).

The CWA and its associated regulations authorize the Corps to issue permits for the

discharge of fill material into the waters of the United States. See 33 U.S.C. § 1344(a); Rapanos,

547 U.S. at 723 (“Section 1344 authorizes the Secretary of the Army, acting through the Corps, to

issue permits[.]” (internal quotation marks omitted)). However, the CWA also provides that the

discharge of fill material from “normal farming, silviculture, and ranching activities” is generally

“not prohibited by or otherwise subject to regulation” under Section 1344. 33 U.S.C. §

1344(f)(1)(A).

Federal regulations authorize the Corps’ district engineers to issue “approved jurisdictional

determinations” stating whether waters of the United States are present on a particular parcel. 33

C.F.R. §§ 325.9; 331.2 (defining approved jurisdictional determination). Federal regulations also

authorize the issuance of “preliminary” jurisdictional determinations, which constitute “written

indications that there may be waters of the United States on a parcel[.]” 33 C.F.R. § 331.2

(defining preliminary jurisdictional determination). Approved jurisdictional determinations are

“clearly designated” actions from which an administrative appeal may be taken. 33 C.F.R. §§

331.2; 331.5(a)(1). However, preliminary jurisdictional determinations are characterized as

“advisory in nature” and not appealable. 33 C.F.R. §§ 331.2; 331.5(b)(9).

When the Corps detects unauthorized activity requiring a permit, it is authorized to take

“appropriate steps to notify the responsible parties.” 33 C.F.R. § 326.3(c). If the violation involves

an incomplete “project,” the notification should be in the form of a cease and desist order; a cease

and desist order should not be “necessary” for a violation involving a “completed project,” but the

district engineer should still “notify the responsible parties of the violation.” 33 C.F.R. §

326.3(c)(1), (c)(2). The Corps has several options for addressing unauthorized activity, including

ordering initial corrective measures, accepting an after-the-fact permit application, or

recommending civil or criminal litigation to obtain penalties or require compliance. 33 C.F.R. §§

326.3(d) and (e), 326.5(a).

II. STANDARD OF REVIEW

“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). If the mover bears his burden of showing that there is no genuine issue of fact, “its

opponent must do more than simply show that there is some metaphysical doubt as to the material

facts … [T]he nonmoving party must come forward with ‘specific facts showing that there is a

genuine issue for trial.’” See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586-87, 106 S. Ct. 1348, 89 L.Ed.2d 538 (1986) (internal citations omitted). The non-mover’s

burden is not satisfied by “conclusory allegations, by unsubstantiated assertions, or by only a

‘scintilla’ of evidence.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994)(citations

and internal quotations omitted). The party opposing the motion for summary judgment may not

sit on his hands, complacently relying on the pleadings. Weyant v. Acceptance Ins. Co., 917 F.2d

209 (5th Cir. 1990). “Where the record taken as a whole could not lead a rational trier of fact to

find for the non-moving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co.,

475 U.S. at 587. General allegations that fail to reveal detailed and precise facts will not prevent

the award of summary judgment. Walton v. Alexander, 20 F.3d 1350, 1352 (5th Cir. 1994).

Further:

In resolving the motion, the court may not undertake to evaluate the credibility

of the witnesses, weigh the evidence, or resolve factual disputes; so long as the

evidence in the record is such that a reasonable jury drawing all inferences in

favor of the nonmoving party could arrive at a verdict in that party’s favor, the

court must deny the motion.

Int’l Shortstop, Inc. v. Rally’s Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).

III. PARTIES’ ARGUMENTS

A. Plaintiffs’ Motion

Plaintiffs seek a ruling under Rule 56 that: (1) Defendants do not have jurisdiction over

Plaintiffs’ property under the CWA because the property at issue does not contain “navigable

waters”; and (2) therefore, the Corps’ cease and desist orders2 stopping silviculture activities

should be set aside because the Corps issued the waters without jurisdiction to do so. (Doc. 35-1,

p. 3). In support of its motion, Plaintiffs present four arguments: (1) the Corps is precluded from

jurisdiction under the CWA because the “waters of the United States” upon which Defendants rely

for jurisdiction is “merely a remote roadside ditch,” (id., p. 8); (2) the Corps is precluded from

jurisdiction under the CWA because the property “lies wholly within or above the 100-year flood

plain,” (id.); (3) the Corps is precluded from jurisdiction under the CWA because neither of the

2 Plaintiffs reference a “notice of violation” dated December 4, 2015, and a cease and desist order dated February 4,

2016 in their motion. (Doc. 35-1, p. 6). Plaintiffs refer to the notice and order collectively as “cease and desist

orders” or “the orders”.

tests set out in Lucas3 and Lipar4 can be satisfied, (id., p. 9); and (4) because there is no jurisdiction

under the CWA, the Corps’ notices must be ruled invalid, (id.).

1. “Waters of the United States”

The CWA makes unlawful the discharge of pollutants into “navigable waters”. “Navigable

waters” is defined as “waters of the United States”. 33 U.S.C. § 1311(a) and § 1362. Plaintiffs

argue that “waters of the United States” may include “wetlands adjacent to other bodies of water

over which the Corps has jurisdiction.” (Id., p. 11, citing U.S. v. Riverside Bayview Homes, Inc.,

474 U.S. 121, 135, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985)). “Adjacent”, however, does not include

“bordering, contiguous, or neighboring.” (Id., p. 12, citing 33 C.F.R. § 328.3(c)). Plaintiffs argue

that “the Corps’ description of ‘adjacent’ wetlands as those that form the border of or are in

reasonable proximity to other waters … of the United States … provides no support for the

inclusion of physically unconnected wetlands as covered ‘waters’”. (Id., citing Rapanos v. U.S.,

547 U.S. 715, 746-47, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (internal quotations omitted)).

Plaintiffs conclude that “[i]f the wetland is not ‘adjacent’ to a water of the United States, i.e.

physically abutting, it is not a jurisdictional ‘water’”. (Id.). Plaintiffs maintain that Defendants

have only identified a “roadside ditch” and a “downstream tributary” on Plaintiffs’ property, which

are not “waters of the United States”. If the “roadside ditch” or the “downstream tributary” are

not waters of the United States, then any wetlands adjacent to them would be isolated and excluded

from jurisdiction. (Id., p. 13).

2. A Roadside Ditch

Plaintiffs contend that roadside ditches do not qualify as “waters of the United States”, and,

therefore, the Corps did not have jurisdiction to issue the cease and desist order or the notice. (Id.,

3 U.S. v. Lucas, 516 F.3d 316 (5th Cir. 2008).

4 U.S. v. Lipar, 665 F. App’x 322 (5th Cir. 2016).

pp. 13-15). The rules in effect at the time Plaintiffs applied for a jurisdictional determination stated

that “[d]itches with ephemeral flow that are not a relocated tributary or excavated in a tributary

(are not waters of the U.S.).” (Id., p. 14, n. 4, citing 33 C.F.R. § 328.3(b)(3) (Jun. 29, 2015)).

Plaintiffs aver that “Defendants ignored the local U.S. Attorney belief that Rapanos eliminated

jurisdiction over these lands.” (Id., p. 14). Plaintiffs conclude that “[t]hese Milton Ln. remote

roadside ditches … are not a water of the United States, thus any wetlands are not ‘adjacent

wetlands.’” (Id., p. 15).

3. 100-Year Flood Plain

Again, relying upon Rapanos, Plaintiffs argue that one of the jurisdictional factors

considered there was the unreasonableness “to assert CWA jurisdiction over wetlands within the

100-year flood plain (i.e. unlikelihood of merging of boundaries of the wetland and its TNW).”

(Id., p. 15). Plaintiffs claim that “[t]his site” is within or above “the 500-year flood plain”.

Therefore, CWA jurisdiction over Plaintiffs’ property does not exist. (Id.). Applying the

“continuous surface connection” standard for “adjacent wetlands” in Rapanos to Defendants’

FEMA map, Plaintiffs conclude that “these lands are almost entirely above the geographic confines

of the ‘100 year flood plain’ or the area with a 1% annual chance of flood, and furthermore almost

entirely outside the geographic confines of the ‘500 year flood plain’ or the area with 0.2% annual

chance of flood (or) 1% chance of flood less than 1 foot (or) drainage areas less than one square

mile.” (Id., p. 16, citing Rapanos, 547 U.S. at 742, and Doc. 35-5, pp. 2, 5). Thus, as a “matter of

law,” Plaintiffs contend that “there is no CWA jurisdiction on Milton Lane.” (Id., p. 17).

4. The Lucas and Lipar Tests are not Satisfied

Plaintiffs claim that Defendants “ignore” Lucas and Lipar, both of which apply the Rapanos

decision. (Id.). The Fifth Circuit stated in Lipar that the “legally permissible approach” is to apply

the “varying tests”, referring to the tests suggested by Justices Scalia and Kennedy as set forth in

Rapanos. Lipar, 665 F. App’x at 325-26. Plaintiffs conclude that “jurisdiction cannot possibly be

met under both tests.” (Id., p. 18; see id., pp. 18-24 for Plaintiffs’ proposed application of both

tests).

5. Set Aside Cease and Desist Order and Notice of Violation

Because Defendants do not have jurisdiction “over the 19-acre Milton Lane property,”

Plaintiffs maintain that “Defendants have no authority to issue its cease and desist order, no

authority to issue a notice of violation, and no authority to criticize Plaintiffs’ silviculture practices,

much less purport to remove the CWA silviculture exemption.” (Id., p. 24).

B. Defendants’ Opposition

Defendants outline Plaintiffs’ four pending claims: (1) denial of procedural due process

limited to the deprivation of silvicultural rights; (2) unreasonably delayed agency action; (3)

invalid cease and desist order; and (4) statutory violation of the CWA. (Doc. 48, p. 2). In

opposition to Plaintiffs’ motion, Defendants argue that Plaintiffs do not “specify which claims …

are the subject of that motion.” (Id.). Defendants then compare Plaintiffs’ motion that seeks a

ruling that Defendants do not have jurisdiction under the CWA, with Plaintiffs’ proposed order,

which is much more expansive and detailed and seeks a declaratory judgment on six specific

points.5 (Id., pp. 2-3). Because Plaintiffs do not identify which claims are the subject of their

5 Plaintiffs’ proposed order seeks an order: (1) finding unlawful and enjoining certain acts, which are that Defendant

unlawfully refused an approved jurisdictional determination delineating any regulated wetlands and unlawfully issued

orders that prohibited installation of municipal waterlines and water tower, unlawfully restricted silviculture, or

housings adjacent to the roadway, and generally for 5 years onerously regulated these lands over which it had no CWA

jurisdiction; (2) that any land or non-traditionally navigable water that is more than one river mile from the nearest

traditionally navigable water is not subject to regulation by the Corps under the Clean Water Act; (3) that any land or

non-navigable tributaries at or above the hundred-year floodplain of the nearest traditionally navigable water is not

subject to regulation by the Corps under the Clean Water Act; (4) that both the plurality and concurrence standards

from Rapanos v. United States, 547 U.S. 715 (2006), must be established for regulation by the Corps under the Clean

Water Act; (5) that federal agencies shall not limit or curtail silviculture practices pursuant to the Clean Water Act,

except to require a timber management plan; and (6) that any federal agency’s rule or interpretation inconsistent with

motion, Defendants argue that the motion “does not meet the basic requirements of the Federal

Rules,” thereby necessitating dismissal of the motion. (Doc. 48, p. 4).

Second, Defendants argue that Plaintiffs are actually seeking injunctive and declaratory

judgments, which are remedies, not causes of action. (Id.). Because Plaintiffs do not tether the

remedy sought to a claim or cause of action, the motion should be denied. (Id., pp. 4-5).

Defendants then explain, claim by claim, why Plaintiffs fail on summary judgment. (Id.,

pp. 5-7). Further, even if Plaintiffs were to prevail on their claims, Defendants argue that the relief

sought by Plaintiffs is not available under the Administrative Procedure Act (“APA”), (id., pp. 8-

12), and is not appropriate, (id., pp. 13-14).

C. Plaintiffs’ Reply

In reply, Plaintiffs address each of their claims:

1. Due Process

Plaintiffs complain that Defendants stopped legitimate silviculture activities without

jurisdiction to do so when the Corps issued the cease and desist order. (Doc. 56, p. 1). The

silviculture activities should have been exempt from regulation under the CWA. (Id., pp. 1-2).

Therefore, Plaintiffs contend that they are seeking summary judgment that Defendants’

“unlawful” “stoppage of silviculture activity is void” and should be rescinded. (Id., p. 2).

2. Unreasonable Delay

Here, Plaintiffs argue that five years is long enough. “The failure of the Corps to provide

the requested jurisdictional determinations and permitting should be considered final agency action

as denying Plaintiffs of the safe harbor provided by either a permit or a negative jurisdictional

this Court’s judgment is not enforceable within the Fifth Circuit. (Doc. 48, p. 3, referencing “Lewis Proposed Order

at 6-7”).

determination.” (Id., p. 3). Alternatively, Plaintiffs argue that Defendants should be given 15 days

to make a decision on the permit and the jurisdictional determination. (Id.).

3. “Invalid” Cease and Desist Order

Plaintiffs contend that Defendants have “refused” to answer any discovery propounded by

Plaintiffs and to produce an administrative record. (Id.). Plaintiffs reiterate that Defendants did

not have “regulatory jurisdiction” to issue the cease and desist order. (Id.).

4. Clean Water Act

The only statement offered by Plaintiffs is that this Court has “already ruled that Plaintiffs

stated a valid claim for relief here”. (Id.).

5. Relief

Because the totality of “the Government’s” actions and inactions deprived Plaintiffs of

protected rights, Plaintiffs argue that the Court is “free to fashion remedies” under the Constitution

and apart from the APA. (Id., p. 4).

IV. ANALYSIS

A. Is Plaintiffs’ motion procedurally proper?

Defendants’ primary argument is that Plaintiffs’ motion is not procedurally proper. In

moving for summary judgment, the Federal Rules of Civil Procedure require that Plaintiffs

“identify[] each claim or defense” on which summary judgment is sought and set forth the evidence

that establishes the elements of Plaintiffs’ claims. (Doc. 48, pp. 3-4, citing FRCP 56(a); Fontenot

v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986); Celotex v. Catrett, 477 U.S. 317, 323 (1986)).

Defendants are correct that Plaintiffs must prove their prima facie case before being entitled to

summary judgment and declaratory relief, as is sought here. Whitney Bank v. Nafel, Civ. A. No.

14-208, 2015 WL 1457528, *12 (M.D. La. Mar. 30, 2015)(“the Court cannot grant summary

judgment or declaratory relief” when the plaintiff has not proven a prima facie case). Further,

once Plaintiffs prove the merits of their claims, they must provide the Court with legal authority

for the injunctive and declaratory relief that they seek in order to secure the partial summary

judgment. People’s Workshop, Inc. v. Federal Emergency Management Agency, Civ. A. No. 17-

107, 2019 WL 1140196, *9 (M.D. La. Mar. 12, 2019) (“Even to the extent any of the plaintiffs’

claims were plausible on their merits, they have failed to provide the Court with any legal authority

whatsoever for the injunctive and declaratory relief they seek ….”). Defendants challenge the

relief sought by Plaintiffs on these grounds as well, arguing that the APA does not authorize the

injunctive and declaratory relief sought and that the claimed relief is “inappropriate”. (Doc. 48,

pp. 8-14). With this in mind, the Court first determines whether Plaintiffs have sufficiently

identified and offered evidence in support of their causes of action that, arguably, entitle them to

the relief that they seek.

1. Have Plaintiffs identified the claims made the subject of their motion?

Pursuant to this Court’s most recent ruling on Defendants’ second motion to dismiss,

Plaintiffs’ remaining claims are for: (1) denial of procedural due process with regard to silviculture

rights; (2) unreasonable delay; (3) invalid cease and desist order; and (4) violations of the CWA.

(Doc. 30). In their present motion, Plaintiffs seek a partial summary judgment that “Defendants

are without … CWA … jurisdiction over certain real property …. Further, said judgment would

necessarily set aside the Corps’ cease and desist orders, stopping normal silviculture activities.”

(Doc. 35-1, p. 3).

This motion for injunctive and declaratory relief is premised on the following: that

Defendants issued a notice of violation on December 4, 2015, and a cease and desist order on

February 4, 2016 “essentially revoking Lewis’ silviculture exemption” as provided by 33 U.S.C.

§ 1344(f)(1)(A), which exempts from regulation the discharge of fill material from “normal”

silviculture activities into “waters of the United States”, (Doc. 35-1, p. 6); the Corps has

jurisdiction under the CWA to issue permits for the discharge of fill material into the “waters of

the United States” and to issue “approved jurisdictional determinations” stating whether waters of

the United States are present on a particular parcel of land; the notice of violation and the cease

and desist order were issued without a response to Plaintiffs’ prior requests for a jurisdictional

determination, a response to Plaintiffs’ prior application for permits, and without first conducting

a hearing, (Doc. 23, p. 24); Plaintiffs’ offered evidence which purportedly shows that the “waters”

on Plaintiffs’ property made the subject of the notice of violation and cease and desist order is

“merely a remote roadside ditch,” (Doc. 35-1, p. 8); a “roadside ditch” does not qualify as “waters

of the United States” under In re Needham, 354 F.3d 340 (5th Cir. 2003), (id.); the property at

issue “lies wholly within or above the 100-year flood plain”, (id.); because the property is above

the 100-year flood plain, it is outside of the jurisdiction of the Corps under the CWA, (id.);

Defendants do not meet the Lucas and Lipar tests for CWA jurisdiction, (id., p. 9); the notice of

violation and cease and desist order were issued without CWA jurisdiction, (id.); therefore, the

notice and order are “invalid” and should be revoked, (id.). In addition, Plaintiffs argue that

Defendants’ delay in failing to respond to Plaintiffs’ requests was an improper implementation of

the CWA, “causing significant damages,” and that Plaintiffs were deprived of procedural due

process. (Doc. 35-1, pp. 24-26). Plaintiffs conclude by praying “for an order of partial summary

judgment, setting aside jurisdiction under the CWA as unlawful, setting aside the cease and desist

orders as unlawful, and setting aside revocation of the silviculture exemption as unlawful with

specific findings that the delay was unlawful, and the refusal to process permits was unlawful.”

(Id., p. 27). Plaintiffs also “pray the case remains open for one year after summary judgment on

jurisdiction and any potential ruling on attorney fees, in order that Plaintiffs may litigate pending

claims.” (Id.).

While Plaintiffs do not specifically state upon which counts of their complaint they move

for partial summary judgment, their allegations and argument in support of their motion are those

underlying all of their remaining claims. Plaintiffs claim that they were denied procedural due

process with regard to their silviculture rights because they were stopped from “normal”

silviculture activities without a jurisdictional determination or hearing. Plaintiffs claim

unreasonable delay for the Corps’ alleged failure to respond to their multiple requests for

jurisdictional determinations and permits. Based on these allegedly faulty actions, Plaintiffs allege

that the Corps’ cease and desist order is “invalid” and issued outside of the Corps’ jurisdiction as

dictated by the CWA. Finally, Plaintiffs allege that Defendants’ improper procedures and over-

regulation violated the CWA. See Willis v. Cleco Corp., 749 F.3d 314, 319 (5th Cir. 2014) (the

mover must “identify a theory as a proposed basis for deciding the claim” and explain “why the

facts would allow a reasonable jury to decide in his favor”). The motion is partial in nature as it

seeks a determination of the issue of jurisdiction under the CWA and only seeks injunctive and

declaratory relief, not monetary relief. See, e.g., Sierra Club, Lone Star Chapter v. Cedar Point

Oil Co. Inc., 73 F.3d 546, 553-54 (5th Cir. 1996).

Based on the foregoing, it appears to the Court that all of Plaintiffs’ pending claims are at

issue in the present motion. This conclusion is supported by Plaintiffs’ arguments in reply to

Defendants’ opposition. (Doc. 56). To be clear, the fact that Plaintiffs are seeking partial summary

judgment on one legal issue underlying all four of its claims does not mean that Plaintiffs have

met their burden of proof entitling them to the relief sought. Before determining whether Plaintiffs

have made a sufficient evidentiary showing that they prevail on their causes of action, thus entitling

them to the relief sought, the Court next turns to the procedural issue of whether the injunctive and

declaratory relief sought is even available to the Plaintiffs.

2. Is the relief sought available under the law?

The Court first looks to Plaintiffs’ motion to identify the precise relief sought. Plaintiffs

state that they are seeking a ruling that “Defendants are without … CWA … jurisdiction” over

Plaintiffs’ property, and a ruling setting aside the cease and desist order and notice of violation

issued by the Corps, which effectively stopped normal silviculture activities. (Doc. 35-1, p. 3). In

their prayer, Plaintiffs pray “for an order of partial summary judgment setting aside jurisdiction

under the CWA as unlawful, setting aside the cease and desist orders as unlawful, and setting aside

revocation of the silviculture exemption as unlawful with specific findings that the delay was

unlawful, and the refusal to process permits was unlawful.” (Doc. 35-1, p. 27). Plaintiffs’ prayer

is more expansive than Plaintiffs’ initial characterization of their motion. Defendants argue that

the sought-after relief is not available under the APA and is not appropriate.

Since the Clean Water Act does not set forth the standards for reviewing the Corps’

decisions, we look to the APA, 5 U.S.C. §§ 701 et seq. (1976), for guidance. See Save the Bay,

Inc. v. Administrator of the EPA, 556 F.2d 1282 (5th Cir.1977); Natural Resources Defense

Council, Inc. v. Train, 510 F.2d 692 (D.C.Cir.1975). In general, the APA provides that a court

shall set aside agency findings, conclusions, and actions that are “arbitrary, capricious, an abuse

of discretion, or otherwise not in accordance with law,” or that fail to meet statutory, procedural

or constitutional requirements. 5 U.S.C. §§ 706(2)(A), (B), (C), (D). This standard of review is

highly deferential. A final agency decision is “entitled to a presumption of regularity.” Citizens to

Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).

While the court “must consider whether the decision was based on a consideration of the relevant

factors and whether there has been a clear error of judgment,” and while “this inquiry into the facts

is to be searching and careful, the ultimate standard of review is a narrow one.” Id. at 416. In

Overton Park, the Supreme Court stated unequivocally that the “court is not empowered to

substitute its judgment for that of the agency.” Id.; accord Bowman Transportation, Inc. v.

Arkansas-Best Freight System, Inc., 419 U.S. 281, 285, 290, 95 S.Ct. 438, 442, 444, 42 L.Ed.2d

447 (1974); Louisiana Environmental Society, Inc. v. Dole, 707 F.2d 116, 118–19 (5th Cir.1983);

City of Houston v. FAA, 679 F.2d 1184, 1190 (5th Cir.1982).

In Ethyl Corp. v. EPA, 541 F.2d 1 (D.C.Cir.) (en banc), cert. denied, 426 U.S. 941, 96 S.Ct.

2663, 49 L.Ed.2d 394 (1976), the Court of Appeals for the District of Columbia explained the

boundaries of a court’s role in reviewing an agency decision under the arbitrary and capricious

standard. The Ethyl Court directed reviewing courts to “immerse” themselves in the evidence in

the administrative record in order to determine whether the “agency decision was rational and

based on consideration of the relevant factors.” 541 F.2d at 36 (citing Overton Park ). The court

warned, however, that this effort to understand the evidence must be performed with a

“conscientious awareness of the limited nature” of the court’s function and the need to defer to the

agency’s expertise:

The enforced education into the intricacies of the problem before the agency is not

designed to enable the court to become a superagency that can supplant the

agency’s expert decision-maker. To the contrary, the court must give due deference

to the agency’s ability to rely on its own developed expertise....

Thus, after our careful study of the record, we must take a step back from the agency

decision. We must look at the decision not as the chemist, biologist or statistician

that we are qualified neither by training nor experience to be, but as a reviewing

court exercising our narrowly defined duty of holding agencies to certain minimal

standards of rationality.

Id. (citations and footnotes omitted).

The basis for a court’s review of an agency decision is subject to narrow limitations. Where

an agency’s decision is based on an administrative record, the decision should be reviewed in light

of that record. Camp v. Pitts, 411 U.S. 138, 142–43, 93 S.Ct. 1241, 1244, 36 L.Ed.2d 106 (1973);

accord Louisiana Environmental Society, supra. If the agency decision is not sustainable on the

basis of the administrative record, then “the matter [should be] remanded to [the agency] for further

consideration.” Camp, 411 U.S. at 143 (emphasis added); accord Vermont Yankee Nuclear Power

Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 549, 98 S.Ct. 1197, 1214, 55

L.Ed.2d 460 (1978).

In “certain narrow, specifically limited situations,” agency action may also be set aside if it

is not supported by “substantial evidence,” 5 U.S.C. § 706(2)(E), or, in “other equally narrow

circumstances,” a court may engage in de novo review of the action and set it aside if it is

“unwarranted by the facts.” 5 U.S.C. § 706(2)(F). Overton Park, 401 U.S. at 414. De novo review

under section 706(2)(F) is authorized only “when the action is adjudicatory in nature and the

agency factfinding procedures are inadequate,” or “when issues that were not raised before the

agency are raised in a proceeding to enforce non-adjudicatory agency action.” Overton Park, 401

U.S. at 415.

The determination of what qualifies as “waters of the United States” is precisely the type of

agency decision that is normally subject to limited judicial review. The determination, which

requires an analysis of the types of vegetation, soil and water conditions that would indicate the

existence of wetlands and sophisticated mapping of various types of water bodies, is the kind of

scientific decision normally accorded significant deference by the courts. See Deltona Corp.,

supra; Hercules, Inc. v. EPA, 598 F.2d 91, 106 (D.C.Cir.1978); Ethyl, supra; see also U.S. Army

Corps of Engineers v. Hawkes Co., Inc., ___ U.S. ___, 136 S.Ct. 1807, 1812, 195 L.Ed.2d 77

(2016) (it is for the Corps to specify “whether particular property contains ‘waters of the United

States’ by issuing ‘jurisdictional determinations’ … on a case-by-case basis”). De novo review

would permit the courts to intrude into an area in which they have no particular competence, and

the presentation of the scientific evidence at both the administrative and judicial levels of the

proceeding would result in inefficiencies and delays where they are most harmful. See Sierra Club

v. Sigler, 695 F.2d 957, 981 (5th Cir. 1983) (noting that “protracted litigation in environmental

cases can kill projects by delay”). The arbitrary and capricious standard affords the proper

deference to the agency’s scientific expertise, while the requirement that a court engage in a

thorough, in-depth review of the administrative record to ascertain whether the agency has

considered all of the relevant factors and whether the agency’s decision is rational, Overton Park,

401 U.S. at 416, assures that deference to the agency does not result in abdication of judicial

responsibility. See Ethyl, supra, 541 F.2d at 36–37.

Both parties address Avoyelles Sportsmen’s League, Inc. v. Marsh, 715 F.2d 897 (5th Cir.

1983), but for different reasons. In Avoyelles, the Fifth Circuit applied the standard set forth above.

Defendants are correct that the procedural posture of Avoyelles was different than the matter

presently before the Court. (Doc. 48, p. 11, n. 4). However, the Court notes that in Avoyelles, the

district court had previously remanded the matter and ordered that a proper administrative record

be prepared evidencing the determination of jurisdiction under the CWA. Avoyelles, 715 F.2d at

907. The parties were ordered to prepare an administrative record within 60 days. Id. It was this

administrative record that the Fifth Circuit found should have been the “focal point” of the district

court’s review of the jurisdictional determination. Id., citing Camp, supra, 411 U.S. at 142, 93

S.Ct. at 1244; Louisiana Environmental Society, supra, 707 F.2d at 119. The Fifth Circuit held

that “the district court erred in substituting its own wetlands determination for the EPA’s instead

of reviewing the agency’s decision, as supported by the administrative record, under the arbitrary

and capricious standard.” Id.

“If the record before the agency does not support the agency action, if the agency has not

considered all relevant factors, or if the reviewing court simply cannot evaluate the challenged

agency action on the basis of the record before it, the proper course, except in rare circumstances,

is to remand to the agency for additional investigation or explanation.” Fla. Power & Light Co. v.

Lorion, 470 U.S. 729, 744, 105 S.Ct. 1598, 84 L.Ed.2d 643 (1985); see also I.N.S. v. Ventura, 537

U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). When a court remands to an

agency to clarify the reasons supporting its decision, the case law suggests that remand, without

vacating the agency’s order, is the appropriate course of action. U.S. Postal Serv. v. Postal

Regulatory Comm’n, 785 F.3d 740, 756 (D.C. Cir. 2015); Am. Bioscience, Inc. v. Thompson, 269

F.3d 1077, 1086 (D.C. Cir. 2001)(remanding without vacating when the court is unsure of the

grounds the agency asserts to defend its action); see also Redeemed Christian Church of God v.

United States Citizenship and Immigration Services, 387 F.Supp.3d 734 (S.D. Tex. May 26, 2016)

(where matter remanded to agency to clarify the administrative record and for the agency to clearly

explain the basis for its decision based on the record).

Defendants set forth the APA standards in opposition to Plaintiffs’ motion and argue that:

(1) the “only possible remedy provided in the APA for Count I [procedural due process related to

silviculture activity] is to set aside any unconstitutional Corps action,” (Doc. 48, p. 9); (2) the

“most the Court could do is to issue an order that the Corps either grant or deny the request for an

approved [jurisdictional determination] and either grant or deny the permit application,” (id.);

however, the Court cannot “dictate how the Corps will act on the request for an approved

jurisdictional determination or permit application,” (id., p. 10); and (3) the Court should remand

the cease and desist order and notice of violation to the Corps for reconsideration rather than

reaching the merits, (id.), and the Court cannot at any time “step in for the Corps” and “decide the

jurisdictional status of Lewis’s property de novo,” (id., p. 11). In summary, Defendants argue that

this Court is not able to determine whether the Corps has jurisdiction under the CWA de novo and

provide the relief that Plaintiffs have moved the Court to deliver. In fact, as Plaintiffs note in their

reply brief, there is no administrative record for the Court to review to determine if the Corps’

exercise of jurisdiction under the CWA was “unlawful” or not. (See, Doc. 56, p. 3). Defendants

admit that the Court may set aside any “unconstitutional” action, remand the matter to the Corps

for further action, and order the Corps to act upon the request for a permit and rule upon the request

for an approved jurisdictional determination. Plaintiffs seem to concede this point in requesting,

in the alternative, that “the Defendants should be given 15 days to make decisions on the permit

and jurisdictional determination.”

The Court agrees with Defendants that, given that there is no administrative record before it,

the Court is unable to review this matter and grant Plaintiffs the relief that they seek. That is, the

Court is not permitted under the law to make a de novo ruling as to whether the Corps has

jurisdiction under the CWA, at least not without some factual foundation on which to make such

a review. Such a determination requires the Court to assess affidavits of environmental

consultants, maps of wetlands, and consideration of various elements that are, as the Fifth Circuit

stated in Avoyelles, “precisely the type of agency decision that is normally subject to limited

judicial review … the kind of scientific decision normally accorded significant deference by the

courts.” Avoyelles, 715 F.2d at 906-07. Significantly, there is no administrative record before the

Court to review, only Plaintiffs’ offered affidavits and documentation of the “frustrating” process

and delay at the administrative level. For the Court to issue the ruling sought by Plaintiffs based

on the present record would therefore be premature. See U.S. v. Menendez, 48 F.3d 1401 (5th Cir.

1995) (finding that the district court erred in granting summary judgment without considering

record as a whole, which was rendered impossible by the failure to file a certified copy of the

administrative record; court remanded and ordered that mover provide a certified copy of the

administrative record wot the district court).

Based on the foregoing, Plaintiffs’ motion for summary judgment will be denied without

prejudice. The Court will therefore remand this matter to the proper agency to proceed with

certain, defined actions, including preparing and certifying a complete administrative record. Once

this is complete, Plaintiffs may re-urge its motion.

B. Remand and Order

Defendants admit it has not produced an administrative record for the Court to review. (Doc.

47-8, pp. 5, 29). Defendants suggest as an alternative resolution to not only Plaintiffs’ motion for

partial summary judgment, but also its own, that the Court remand this matter to the Corps and

order the Corps to rule upon Plaintiffs’ request for an approved jurisdictional determination, to

conduct a proper hearing, to rule upon Plaintiffs’ request for a permit, to allow the Corps to re-

visit its cease and desist order and better explain its basis for same, and to supplement and produce

a complete and certified administrative record within a reasonable amount of time. (Doc. 48, pp.

9-10; Doc. 47-8, pp. 5, 15, 18, 20, 25-27).

While Defendants argue that their alleged “unreasonable delay” was justified under the law,

they concede their process could have been better explained. (Doc. 47-8, p. 26). Defendants also

suggest that a hearing and further consideration of Plaintiffs’ requests on a supplemented record

might result in a different outcome, or the same outcome but with better clarity and in a better

posture for the Court to review a complete administrative record to determine whether Defendants

acted arbitrarily and capriciously. (Doc. 47-8, pp. 26-27). Defendants admit that the Court may

order the Corps to respond to the requests for an approved jurisdictional determination and respond

to the permit application. (Doc. 48, p. 9).

Based on the foregoing, it is clear to the Court that an administrative record has not been

completed or produced; that Plaintiffs were not given a hearing; that while Defendants argue

justification for their delay and the issuance of the cease and desist order, Defendants do not

dispute that they could have been clearer in how and why they reached their determination; and

that a supplemented and more complete administrative record might yield a different result. While

Plaintiffs understandably argue against remand because this will only result in further delay, (Doc.

56), they provide no legal authority to support a different procedure to move this matter forward.

Therefore, the Court remands this case to the Corps to conduct the following actions:

respond to Plaintiffs’ requests for jurisdictional determination; respond to Plaintiffs’ permit

application; re-visit the notice of violation and cease and desist order previously issued by

Defendants, which should include conducting a proper hearing and fully explaining the basis of

Defendants’ revised determination; and prepare and certify a complete administrative record to be

filed with the Court.

It is necessary for the Court to set a timeframe within which the ordered actions must take

place. Defendants suggest a time period ranging from 30 days to respond to the requests for

jurisdictional determination, (Doc. 47-8, p. 18), to six months to respond to the permit application,

(id., p. 20). Plaintiffs suggest a timeframe of 15 days for Defendants to respond to the requests for

a jurisdictional determination and application for a permit. (Doc. 56, p. 3). A review of

jurisprudence from within the Fifth Circuit reflects that sixty days was ordered as a reasonable

amount of time to compile a complete administrative record, Avoyelles, 715 F.2d at 907; and forty-

five days was ordered for the agency to issue a preliminary finding in re-visiting a prior

determination and 120 days to issue the final finding, Ecee, Inc., v. Federal Energy Regulatory

Commission, 645 F.2d 339, 345 (5th Cir. 1981).

In order to avoid further unnecessary delay and in an effort to determine the precise

timeframe needed to conduct the ordered actions on remand, the Court orders Defendants to submit

to the Court a proposed schedule for these actions within fifteen (15) days from the date of this

Ruling and Order. Plaintiffs are granted ten (10) days from the date of Defendants’ proposed

schedule to respond. All parties are to include a rationale and basis to support the timeframe

encompassed within their proposed schedule. All parties are to be mindful of avoiding any

unnecessary delay in their proposed schedule.

V. CONCLUSION

For these reasons, IT IS ORDERED that Plaintiffs’ Motion for Partial Summary Judgment

(Doc. 35) is DENIED without prejudice. This matter is remanded to the Corps to proceed in

accordance with this Ruling and Order: to respond to Plaintiffs’ requests for jurisdictional

determination; to respond to Plaintiffs’ permit application; to re-visit the notice of violation and

cease and desist order previously issued by Defendants, which should include conducting a proper

hearing and fully explaining the basis of Defendants’ revised determination; and to prepare and

certify a complete administrative record to be filed with the Court.

The Court further orders Defendants to submit to the Court a proposed schedule for these

actions within fifteen (15) days from the date of this Ruling and Order. Plaintiffs are granted ten

(10) days from the date of Defendants’ proposed schedule to respond. All parties are to include a

rationale and basis to support the timeframe encompassed within their proposed schedule. All

parties are to be mindful of avoiding any unnecessary delay in their proposed schedule.

Signed in Baton Rouge, Louisiana, on August 4, 2020.

S

__________________________________________

JUDGE JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA