Ellison v. Connor

• Decision Date: 11 September 1998
• Docket Number: Nos. 97-30359,98-30203,s. 97-30359
• Citation: Ellison v. Connor, 153 F.3d 247 (5th Cir. 1998)
• Parties: 29 Envtl. L. Rep. 20,240 Kathryn Gwin ELLISON; Whiskey Bay Acres L.L.C.; David M. Ellison, Jr., Plaintiffs-Appellants, v. William L. CONNOR, District Engineer, Department of the Army Corps of Engineers; United States of America, on behalf of U.S. Army Corps of Engineers, Defendants-Appellees. UNITED STATES of America, Plaintiff-Counter Defendant-Appellee, v. Jimmy D. LAVIOLETTE, Defendant-Counter Claimant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 247

153 F.3d 247

29 Envtl. L. Rep. 20,240

Kathryn Gwin ELLISON; Whiskey Bay Acres L.L.C.; David M.

Ellison, Jr., Plaintiffs-Appellants, v. William L. CONNOR, District Engineer, Department of the Army

Corps of Engineers; United States of America, on

behalf of U.S. Army Corps of Engineers,

Defendants-Appellees.

UNITED STATES of America, Plaintiff-Counter Defendant-Appellee, v. Jimmy D. LAVIOLETTE, Defendant-Counter Claimant-Appellant.

Nos. 97-30359, 98-30203.

United States Court of Appeals Fifth Circuit.

Sept. 11, 1998.

Robert Thomas Jorden, Jr., John William Kolwe, Perret, Doise, Daigle, Lonfman, Russo & Zaunbrecher, Lawrence E. Donohoe, Jr., Lafayette, LA, for Kathryn and David Ellison, Jr., Whiskey Bay Acres, L.L.C. and Laviolette.

John A. Broadwell, Shreveport, LA, for Connor and United States.

Mary Alice Thurston, Andrew C. Mergen, U.S. Dept. of Justice/Appellate Section, Washington, DC, for United States.

Appeals from the United States District Court for the Western District of Louisiana.

Before KING and DAVIS, Circuit Judges, and VANCE ^*, District Judge.

VANCE, District Judge:

Before the Court are the consolidated appeals of Kathryn and David Ellison ("Ellisons") and Jimmy D. Laviolette ("Laviolette"). The appellants appeal two adverse district court decisions involving the U.S. Corps of Engineers' ("Corps") refusal to issue permits allowing them to build camp-homes on their property in the Atchafalaya floodway. We agree with the district court that it lacked subject matter jurisdiction to review the Corps' permitting decision under the Administrative Procedure Act. We find that the district court erred in finding that the Ellisons lacked standing to assert constitutional due process claims, but we agree with the district court's reasoning that such claims are meritless. Finally, we affirm the district court's grant of summary judgment upholding the Corps' right to require Laviolette to remove his camp from the floodway.

I. Factual Background

In 1985, the Ellisons acquired 1206 acres of land from Texaco, Inc. in St. Martin Parish, Louisiana. The property fronts the Whiskey Bay Pilot Channel, a waterway that connects the Atchafalaya River and the Mississippi River. The Ellisons' land lies within the Whiskey Bay Pilot Channel Project, which was developed by the Corps as part of the Atchafalaya Basin Floodway System. The Project was authorized by Congress in legislation providing for flood control on the Mississippi River and its tributaries. See Mississippi River Flood Control Act, 49 Stat. 1508 (June 15, 1936).

The Ellisons purchased their tract subject to a "perpetual flowage, channel and disposal" easement that was granted to the United States from the Texas Company on August 4, 1941. The easement grants the United States broad, perpetual rights to enter, excavate, and flood the property, as well as to construct levees, embankments, bridges, highways, and utilities thereon, pursuant to its management of flooding and navigation on the Mississippi River and its tributaries.

The 1941 deed reserves to Texas Company and its assigns, in addition to certain rights related to mineral development, all rights and privileges that do not interfere with the easement. However, the deed contains a building restriction which requires the permission of the Corps to build any structures that "may in any way interfere" with navigation in any channel that "may be excavated" or with "the construction, maintenance or repair of any channels, or any levees or other works to be built" on the land.

In the early 1990s, Ellison sold two small tracts to third parties, and the United States acquired by condemnation the remainder of the 1206 acres. However, on June 21, 1993 the United States revested in the Ellisons the 110.9 acres at issue in this case.

In reaching the agreement to revest the land, the Ellisons allege that the Corps orally agreed to grant permits for the development of recreational campsites on the property. The only evidence of the alleged agreement was a June 30, 1993 letter from Thad J. Brown, Chief of the Real Estate Division of the Department of the Army. The letter provided in part:

In connection with your request for an outline of our permit application process ...

Upon receipt of your [permit] request, we will ... review for such things as present or future Corps activities in the area (future plans to widen, deepen, or move the channel, plans to dredge the channel), the historical, environmental and cultural resources of the planned site (Indian mounds or artifacts, eagle nest, etc.), and either approve the request, deny the request for specific reasons, or require modification to the request that we now negotiate with you.

The Ellisons proceeded to subdivide a portion of their property into 55 one acre lots, known as the Whiskey Bay Acres Subdivision. By October 8, 1995, the Ellisons had sold 38 lots, including one to appellant Laviolette. Laviolette's deed reflected the existence of the easement and recited the need to acquire a permit from the Corps before construction of any improvements.

Despite the language in his deed, Laviolette moved onto his lot a wooden camp-house in December 1994. On April 13, 1995, the Corps advised Laviolette of the requirement to obtain a permit for the structure. Laviolette responded by returning the letter with a handwritten note stating, "Please issue me a permit. Thank you, Jimmy D. Laviolette." In addition to Laviolette, other lot owners submitted permit requests to the Corps. The Ellisons did not submit a request for permit.

On October 10, 1995, the Corps notified Laviolette, Ellison and the other lot owners that, after consideration of its present and future requirements, that appellee "found it to be in the best interest of the United States to prohibit the construction or placement of any structures on th[e] land." The letter further requested that any existing structures be removed. The Corps agreed, however, to allow the placement of easily removable items such as tents and wheeled trailers less than 40 feet long upon obtaining a real estate permit. It noted, however, that regulatory permits under the Clean Water Act would also be required if the property were determined to be wetlands.

On October 11, 1995, the Ellisons wrote to Colonel Clow, District Engineer of the Corps, outlining their understanding of the history of the problem and requesting a meeting. Clow met with the Ellisons and responded by letter on November 17, 1995, affirming the Corps' decision of October 10.

Clow noted that the Corps' letter of June 30, 1993 was based on the understanding that the Ellisons intended to apply for a single camp permit for their property. He stated that the Ellisons had not indicated their intent to subdivide the property, which would have met with a different response. Clow stated, "While it is true that we currently have no plans to modify the Whiskey Bay Pilot Channel, the dynamic nature of the Atchafalaya Basin may require such action in the future."

II. Proceedings Below

In response to the Corps' action, the Ellisons filed suit for declaratory relief and a stay of further action by the Corps. The Ellisons challenged the Corps' decision as arbitrary, capricious and made in violation of applicable permitting procedures. They asserted that their due process rights were violated and that the Court should declare that they have the right to build the contested structures. On September 1, 1997, the district court dismissed the action, holding that it lacked subject matter jurisdiction to review the Corps' decision under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et seq., as it was an action "committed to agency discretion by law" under § 701(a)(2) of the APA. The district court also found that the Ellisons lacked standing to assert a constitutional due process claim and that such constitutional claims were meritless in any event.

Meanwhile, on February 18, 1997, the United States sued Laviolette to force him to remove his camp from the property covered by the easement. Based on its interpretation of the easement granted in 1941, the district court granted the government's motion for summary judgment, finding that the Corps was "well within its rights" in denying Laviolette's permit and requiring him to remove the existing structure. The court also held that there was no agreement binding the Corps to issue Laviolette a permit.

These consolidated appeals challenge each of the district court's decisions.

III. Standards of Review

This Court reviews a district court's dismissal for lack of subject matter jurisdiction de novo. Carney v. Resolution Trust Corp., 19 F.3d 950, 954 (5th Cir.1994).

We review a dismissal for failure to state a claim upon which relief may be granted under the same standard used by the district court: a claim may not be dismissed unless it appears certain that the plaintiffs cannot prove any set of facts in support of their claim that would entitle them to relief. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.1994).

We review a district court's grant of summary judgment de novo, applying the same standard of review as would the district court. Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir.1997). Summary judgment is proper only when it appears that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). On summary judgment, the inferences to be drawn from the underlying facts contained in the record must be viewed in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

IV. The Ellisons' Appeal

The Ellisons assert that the district court erred in finding that the Corps' decision to deny permits was "committed to agency discretion by law" and hence was unreviewable under the APA. 5 U.S.C. § 701(a)(2).

The APA allows...