Lotz Realty Co. v. US

• Decision Date: 19 October 1990
• Docket Number: Civ. A. No. 90-1678-N.
• Citation: 757 F. Supp. 692
• Parties: LOTZ REALTY COMPANY, Plaintiff, v. UNITED STATES of America, et al., Defendants. HAMPTON VENTURE NO. ONE, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

757 F. Supp. 692

LOTZ REALTY COMPANY, Plaintiff, v. UNITED STATES of America, et al., Defendants.

HAMPTON VENTURE NO. ONE, Plaintiff, v. UNITED STATES of America, et al., Defendants.

Civ. A. No. 90-1678-N.

United States District Court, E.D. Virginia, Norfolk Division.

October 19, 1990.

Richard R. Nageotte, and James S. Krein, Nageotte, McCormack, Krein & Gray, Woodbridge, Va., for plaintiff, Lotz Realty Co.

Richard B. Stewart, Asst. Atty. Gen., Environmental and Natural Resources Division, Jon M. Lipshultz, U.S. Dept. of Justice, Environmental Defense Section, Washington, D.C., John Phillip Krajewski, Asst. U.S. Atty., Office of the U.S. Atty., Norfolk, Va., for defendants.

ORDER

CLARKE, District Judge.

This matter comes before the Court in Civil Action No. 90-1427-N for review of the Magistrate's Report and Recommendation. The Magistrate recommended to the District Court that this matter be dismissed for lack of jurisdiction.

The Court has made a de novo review of the file in Civil Action No. 90-1427-N including all briefs filed. The Court agrees with the Magistrate's Report and Recommendation on the grounds stated by the Magistrate. 5 U.S.C. § 704 provides for judicial review of final government agency action. In this case, the action of the Corps of Engineers in requiring the plaintiff to apply for an individual permit rather than approving plaintiff's plan under a nationwide or regional application is not final action because it does not deny plaintiff the right to carry out its plans.

For the reasons stated, Civil Action No. 90-1427-N is DISMISSED for lack of jurisdiction.

The plaintiff has moved to consolidate Hampton Venture No. One v. United States of America, et al., Civil Action No. 90-1678-N with this action. The Motion is now MOOT because Civil Action No. 90-1427-N has been dismissed.

The Clerk is DIRECTED to send a copy of this Order to all counsel of record.

IT IS SO ORDERED.

MAGISTRATE'S REPORT AND RECOMMENDATION

TOMMY E. MILLER, United States Magistrate.

This case was initiated by complaint filed June 28, 1990. The matter was referred to the undersigned United States Magistrate pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and (C) and Rule 29 of the Rules of the United States District Court for the Eastern District of Virginia.

A. Statement Of The Case

This action arises out of a dispute between Lotz Realty Co. (Lotz) and the Army Corps of Engineers (Corps) as to what type of permit, if any, Lotz must acquire under the Clean Water Act in order to develop land it owns in York County, Virginia. Lotz, which proposes to develop a 12.51-acre subdivision on property it acknowledges to be wetlands, filed a complaint on June 28, 1990, against the United States and a number of its officers and employees. Lotz seeks a ruling that a Corps decision requiring it to obtain what is known as an individual discharge permit is either a wrongful exercise of jurisdiction, or, in the alternative, a wrongful exercise of discretion by the Corps North Atlantic Division Engineer. Lotz brings its complaint under the Declaratory Judgement Act, 28 U.S.C.S. § 2201 and 2202, the Administrative Procedures Act, 5 U.S.C. § 551 et seq, the United States as a Defendant, 28 U.S.C. § 1346, and Mandamus, 28 U.S.C. § 1361. Lotz claims federal question jurisdiction pursuant to 28 U.S.C. § 1331.

On August 9, 1990, the United States filed a Motion to Dismiss for lack of subject matter jurisdiction. The motion was referred to this Court by Order of Reference dated September 18, 1990, and oral arguments were heard by the Court on that same day. Both sides have filed briefs and supplemental materials.

B. Background

Lotz first became involved with the Army Corps and the permit process with regard to this property after filing a subdivision plan with York County. The county, following normal procedure, contacted the Corps Norfolk District Engineer for a determination of whether the development activity required a Clean Water Act permit. On November 7, 1989, the Corps notified the county that the Lotz property did indeed fall within its jurisdiction, that the proposed work would qualify for Nationwide Permit 26, and that predischarge notification would be required under 33 C.F.R. 330.5(a)(26) discharges which cause the loss or substantial modification of one to 10 acres of jurisdictional headwater wetlands. Plaintiff's Exhibit B. Nationwide permits, unlike individual permits, require little or no documentation. However, Nationwide Permit 26 gives Corps division engineers discretionary authority, under specific guidelines, to add conditions to use of the nationwide permit—or to require an applicant to seek an individual permit. 33 C.F.R. § 330.8.

Lotz provided the Corps District Engineer with the required discharge notification on April 30, 1990, "under protest and without waiver of (his) right to dispute jurisdiction." Plaintiff's Exhibit C. Upon receipt of the notification and further investigation, the Corps division engineer determined that the Lotz project would "cause more than minor individual and cumulative impacts to the aquatic ecosystem" and exercised his discretion to require an individual permit. Plaintiff's Exhibit D.

Lotz filed this action on June 28, 1990, asking the Court to declare that the Corps does not have jurisdiction over the property in question because, although it is wetlands, it is not "waters of the United States;" or, in the alternative, if jurisdiction over the property is found, that the decision of the division engineer to require an individual permit was abuse of discretion. The government contends that the judicial analysis Lotz requests is premature —that the Clean Water Act precludes review "of such informal agency advice before such time as the United States seeks judicial enforcement of compliance with the permit requirement, or the permit applicant appeals a permit decision to district court." Defendant's Brief, p. 12.

Lotz, on the other hand, argues that the judicial intervention it seeks is not pre-enforcement review because there has not been, nor will there be, any activity by Lotz subject to agency enforcement. Therefore, Lotz states, the Corps' actions create an actual controversy under the Clean Water Act, 33 U.S.C. § 1251, et seq., reviewable under the Declaratory Judgment Act. Lotz also argues that Environmental Protection Agency's assertion of jurisdiction over its property and/or the Corps division engineer's decision to require it to go through the individual permit process are reviewable as "final agency action" under the Administrative Procedures Act.

Finally, Lotz attempts to predicate jurisdiction on Mandamus, United States as a Defendant and Federal Question Jurisdiction.

C. Findings of Fact and Conclusions of Law

1. Mandamus, United States as Defendant, and Federal Question Jurisdiction

Lotz's contentions of jurisdiction based on Mandamus, United States as a Defendant and Federal Question jurisdiction need be addressed only briefly.

The Federal Question statute provides no independent basis for jurisdiction and does not constitute, in itself, a waiver of sovereign immunity from suit. Lowe v. Ingalls Shipbuilding, 723 F.2d 1173 (5th Cir.1984); DeVilbiss v. Small Business Administration, 661 F.2d 716 (8th Cir. 1981). Thus, it would be useful to Lotz here only in conjunction with another statute.

Mandamus under 28 U.S.C. 1361 is an extraordinary remedy available only when a plaintiff can show: 1) that a public official has a plain duty to perform certain acts, 2) that the plaintiff has a plain right to have these acts performed, and 3) there exists no other adequate remedy by which plaintiff's rights can be vindicated. Cook v. Arentzen, 582 F.2d 870 (4th Cir.1978). The Court finds that these elements are not present in Lotz's circumstances.

Lotz's claim of jurisdiction under 28 U.S.C. § 1346 is equally without merit. That section applies only when a plaintiff seeks monetary damages, not equitable relief. Richardson v. Morris, 409 U.S. 464, 93 S.Ct. 629, 34 L.Ed.2d 647 (1973). Moreover, suits under United States as a Defendant are barred where based on discretionary acts by a government agency or employee. 28 U.S.C. § 2680(a). Lotz is seeking injunctive relief against what clearly are discretionary acts by the Army Corps.

2. Review Under the Clean Water Act

In Southern Pines Associates v. United States of America et al, 912 F.2d 713 (1990), the Fourth Circuit held that the statutory structure and history of the Clean Water Act precluded judicial review of a compliance order issued by the Environmental Protection Agency unless and until the agency took steps to enforce it. In support of its contention that Lotz cannot obtain judicial review at this time, the government relies on the reasoning set forth in Southern Pines. The Court agrees that it is applicable.

The structure of (the) environmental statutes indicates that Congress intended to allow EPA to act to address environmental problems quickly and without becoming immediately entangled in litigation ... Considering this legislative history, the structure of these statutes, the objectives of the CWA, and the nature of the administrative action involved, we are persuaded that Congress meant to preclude judicial review of compliance orders under the CWA ... Id. at 716.

Lotz argues that Southern Pines and other cases which involve pre-enforcement review of compliance orders¹ are distinguishable because there is no such order involved in its dispute with the EPA. Lotz contends that a review of the Corps decisions concerning its property at this phase is not pre-enforcement review because, where there is no possibility of future enforcement, there can be no "pre-enforcement" stage.

The Court, however, disagrees with this reasoning, and concurs with the government that the 11th Circuit's affirmance in the similar case of Avella v. United States, No. 90-5289 916 F.2d 721 (table) (1990) is...