Lewis v. United States
| Decision Date | 25 September 2019 |
| Docket Number | CIIVIL ACTION NO. 17-1644-JWD-RLB |
| Parties | GARRY LEWIS, BRENDA GAYLE LEWIS, G. LEWIS LOUISIANA, LLC, ROBERT BEARD, CAROLYN MILTON, AND TOWN OF LIVINGSTON, LA v. UNITED STATES OF AMERICA AND UNITED STATES ARMY CORPS OF ENGINEERS |
| Court | U.S. District Court — Middle District of Louisiana |
This matter comes before the Court on the Motion to Partially Dismiss First Amended Complaint, (Doc. 26), by Defendants, United States of America and United States Army Corps of Engineers ("Corps") (collectively "Defendants" or "United States"), under Rule 12(b)(1) and Rule 12(b)(6). Plaintiffs, Garry Lewis, Brenda Gayle Lewis, G. Lewis Louisiana, LLC, Robert Beard, Carolyn Milton, and Town of Livingston, LA (collectively "Plaintiffs" or "Lewis"),1 opposed the motion. (Doc. 28). Defendants replied. (Doc. 29). Oral argument is not necessary. For the following reasons, the motion is granted in part and denied in part.
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 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". 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. (Doc. 1, p. 2).
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, 2018.2 (Doc. 23). Defendants responded with the instant motion for partial dismissal. (Doc. 26).
In ruling upon Defendants' first motion for partial dismissal, the Court provided a "Regulatory Framework" to lend clarity to Plaintiffs' claims and the nature of this case. (Doc. 22, pp. 1-3). The Court reproduces same herein in addressing Defendants' second motion for partial dismissal.
With certain exceptions, the Clean Water Act ("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) ().
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 (). 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 (). 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), (e), 326.5(a).
Plaintiffs set forth a detailed "summary of facts" in their First Amended Complaint. (Doc. 23, pp. 5-23). The following is a sketch of Plaintiffs' enhanced factual allegations.
On November 4, 2014, "Lewis" requested from the Corps a jurisdictional determination concerning the property at issue in this matter, Milton Lane. (Doc. 23, p. 5). The intention behind 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' voiced 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 EPA concurrence that a "logging operation" on the property did not qualify for the CWA's silviculture exemption. 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. (Doc. 1-20). After receiving this letter, the Corps issued a "cease and desist" letter dated December 4, 2015. (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." (Id., p. 1). 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 ... request", (which is referring to the permit application to build the water tower and water lines), 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 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 mis-construe the significance of the EPA letter and aver that this . (Doc. 23, pp. 10-11).
Plaintiffs...
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