Lewis v. United States
| Decision Date | 04 August 2020 |
| Docket Number | CIVIL 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 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.
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 6 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 (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, Plaintiffscontend 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...
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