Lewis v. United States
| Docket Number | 21-30163,consolidated with No. 23-30387 |
| Decision Date | 18 December 2023 |
| Citation | 88 F.4th 1073 |
| Parties | Garry L. LEWIS; G. Lewis-Louisiana, L.L.C., Plaintiffs—Appellants, v. UNITED STATES of America; Michael C. Wehr, Major General; Michael Clancy, Colonel; United States Army Corps of Engineers, Defendants—Appellees, Garry L. Lewis; G. Lewis-Louisiana, L.L.C., Plaintiffs—Appellants, v. United States of America; United States Army Corps of Engineers; Stephen Murphy, Colonel; Diana Holland, Major General, Defendants—Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Eastern District of Louisiana, USDC Nos. 2:18-CV-1838, 2:21-CV-937, Mary Ann Vial Lemmon, U.S. District Judge
Drake L. Lewis, Livingston, LA, Antonio M. Clayton, Clayton, Fruge & Ward, Port Allen, LA, Joshua Merlin Lewis, Youngsville, LA, Stanley A. Millan, Jones Walker, L.L.P., New Orleans, LA, for Plaintiffs—Appellants.
Michael Thomas Gray, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Jennifer Scheller Neumann, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, for Defendants—Appellees
United States of America, Michael C. Wehr, Major General, Michael Clancy, Colonel, United States Army Corps of Engineers in No. 21-30163.
Michael Thomas Gray, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Sandra Ema Gutierrez, Assistant U.S. Attorney, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Defendants—Appellees United States of America, United States Army Corps of Engineers, Stephen Murphy, Colonel, Diana Holland, Major General in No. 23-30387.
Before Jones, Higginson, and Duncan, Circuit Judges.
Appellants are landowners (referenced together as "Lewis") caught in the coils of the United States Army Corps of Engineers' (USACE's) assertions of Clean Water Act jurisdiction over "wetlands" on their inland Louisiana property for going on ten years. During this period, two Supreme Court cases, three Approved Jurisdictional Determinations (AJDs), two federal court cases resulting in two remand orders, and two appeals to this court have transpired. Enough is enough.
We hold that the Supreme Court's recent decision in Sackett v. EPA controls the undisputed facts here and mandates that Appellants' property lacks "wetlands [that] have 'a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands.' " 598 U.S. 651, 143 S. Ct. 1322, 1340, 215 L.Ed.2d 579 (2023) (quoting Rapanos v. United States, 547 U.S. 715, 742, 126 S. Ct. 2208, 2226, 165 L.Ed.2d 159 (2006) (plurality opinion of Scalia, J.)). Consequently, the property at issue is not subject to federal jurisdiction.
Appellants own substantial real property in Livingston Parish, Louisiana, that has been used primarily as a pine timber plantation for decades. The land at issue here comprises two roughly twenty-acre tracts of "grass-covered, majority dry fields, with gravel logging and timber roads on two sides of each tract." Hoping to develop the property, in August 2013, Lewis first sought a USACE AJD, 33 C.F.R. § 320.1(a)(2), (6),1 which went unanswered until his formal request two years later. After seven site visits, USACE concluded in 2016 that 22% of one tract and 38% of the other contained wetlands subject to CWA jurisdiction.2 With these vague percentage designations, the entire forty acres was practically denominated federal wetlands that require federal permits before further development can occur. See 33 U.S.C. § 1344(a). Lewis appealed to the USACE division commander and secured administrative reconsideration. The result was another, substantially unchanged AJD in November 2017.
Lewis filed suit in federal court for review of the 2017 AJD, alleging inter alia that the Corps' action was arbitrary and capricious under the APA. The district court carefully and extensively reviewed the record, and it found the administrative record insufficient to support the conclusion that wetlands on the property met the "adjacency" test or had a "significant nexus" to traditional navigable waters. The court set aside the 2017 AJD and remanded to USACE for further review.
On remand, USACE revised the data and applied a then-recently issued regulation (the 2020 Navigable Waters Protection Rule3). The remand resulted in a 2020 AJD that acknowledged the absence of jurisdictional wetlands on the western 20-acre tract, but nearly doubled the alleged wetlands to over 16 acres, or 80%, of the eastern tract. The Corps' new conclusion derived from connecting (a) roadside ditches and (b) a culvert to (c) an unnamed non-"relatively permanent water" tributary, then to (d) Colyell Creek (a "relatively permanent water") several miles away, and ultimately to (e) the traditionally navigable waterway of Colyell Bay ten to fifteen miles from the Lewis property. Following remand, the district court entered a final judgment and rejected Lewis's request for the court to review the revised 2020 AJD.
Lewis appealed the court's judgment on the 2017 AJD. We stayed the appeal, however, pending the Supreme Court's decision in Sackett, on which cert. had recently been granted.
In the meantime, Lewis pursued a separate district court case challenging the 2020 AJD. In March 2022, Lewis moved for summary judgment. The USACE responded by offering to withdraw the 2020 AJD and reconsider the jurisdictional issue "promptly" on remand. While Lewis's motion for summary judgment and USACE's motion for voluntary remand were pending, USACE notified Lewis that it had withdrawn the 2020 AJD. The district court granted USACE's motion for voluntary remand and dismissed Lewis's summary judgment motion as moot. Lewis appealed. The appeals were consolidated in this court. We heard oral argument after receiving renewed briefing in the wake of Sackett.
Lewis's position on appeal is simple: he wishes to be set free of further intercourse with the USACE because under no interpretation of the administrative facts, as explained by Sackett, can his property be regulated as "wetlands" subject to the CWA. The government acknowledges it can no longer defend the merits of the 2017 AJD. The government asserts that the appeal of the 2020 AJD is moot since it strategically withdrew that AJD after Lewis filed his second lawsuit. Alternatively, the government again seeks remand to reevaluate the facts and study Lewis's property yet again. We find neither government argument, mootness or remand, persuasive.
The Clean Water Act protects "navigable waters," which the statute defines as "the waters of the United States, including the territorial seas." 33 U.S.C. § 1362(7). Before Sackett, the Supreme Court's exegesis of the statutory term "waters of the United States" had been far from clear. The Rapanos case yielded a four-Justice plurality opinion that narrowly construed the regulation of "wetlands" under the overall CWA mantle (the "adjacency test"), 547 U.S. at 741-42, 126 S. Ct. at 2226-27 (plurality opinion), but Justice Kennedy's separate concurrence required only a "significant nexus" between a property's "wetland" and adjacent "relatively permanent" waterways, id. at 779-80, 126 S. Ct. at 2247-48 (Kennedy, J., concurring in judgment). Rapanos's inconclusive reasoning formed the background of the 2016 and 2017 AJDs. Regulatory ambiguity was heightened by subsequent administrative rulings, guidance, and court opinions.
Fortunately, we need not recount this history in detail. Sackett has cleared the air as concerns this case both legally and factually. In Sackett, the Supreme Court held that the Clean Water Act "extends to only those wetlands with a continuous surface connection to bodies that are waters of the United States in their own right, so that they are indistinguishable from those waters." 143 S. Ct. at 1344 (internal quotation marks omitted) (quoting Rapanos, 547 U.S. at 742, 755, 126 S. Ct. at 2226, 2234). Further, the Court explained, this requires the party asserting jurisdiction over adjacent wetlands to establish "first, that the adjacent [body of water constitutes] . . . 'water[s] of the United States,' (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the 'water' ends and the 'wetland' begins." Id. at 1341 (alterations in original) (quoting Rapanos, 547 U.S. at 742, 126 S. Ct. at 2227). This formulation represents the Sackett "adjacency" test. From a legal standpoint, this test significantly tightens the definition of federally regulable wetlands, as compared with the "significant nexus" test and interim administrative regulations.
Because the district court found the 2017 AJD was insufficiently supported under either the Rapanos "adjacency" test or the "significant nexus" test, it follows that that AJD cannot generate regulation under the Sackett adjacency test. The 2020 AJD fares no better factually under the district court's thorough analysis. Indeed, the Corps cannot escape its concession during the initial litigation that the Lewis tracts cannot satisfy the "adjacency test." As photographs of the property depict, there is no "continuous surface connection" between any plausible wetlands on the Lewis tracts and a "relatively permanent body of water connected to traditional interstate navigable waters." Id. Recall that the nearest relatively permanent body of water is removed miles away from the Lewis property by roadside ditches, a culvert, and a non-relatively permanent tributary. In sum, it is not difficult to determine where the "water" ends and any "wetlands" on Lewis's property begin—there is simply no connection whatsoever. There is no...
To continue reading
Request your trial