McClung v. Paul

• Decision Date: 25 September 2014
• Docket Number: Case No. 1:13-cv-00044-KGB
• Parties: JOHN AND KIM MCCLUNG PETITIONERS v. COLONEL COURTNEY W. PAUL, in his official capacity as District Engineer, Little Rock District, U.S. ARMY CORPS OF ENGINEERS; and the U.S. DEPARTMENT OF THE ARMY RESPONDENTS
• Court: U.S. District Court — Eastern District of Arkansas

JOHN AND KIM MCCLUNG PETITIONERS v. COLONEL COURTNEY W. PAUL, in his official capacity as District Engineer,Little Rock District, U.S. ARMY CORPS OF ENGINEERS;and the U.S. DEPARTMENT OF THE ARMY RESPONDENTS

Case No. 1:13-cv-00044-KGB

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION

September 25, 2014

OPINION AND ORDER

Petitioners John and Kim McClung bring this action seeking judicial review pursuant to the Administrative Procedures Act ("APA"), 7 U.S.C. §§ 701-706. The McClungs challenge respondents' decision to revoke a consolidated shoreline use permit and license to maintain a private boat dock and stone and mortar steps at Greers Ferry Lake in Arkansas. The McClungs originally brought this action against respondents Colonel Glen A. Masset, in his official capacity as District Engineer of the U.S. Army Corps of Engineers Little Rock District, and the U.S. Department of the Army. The Court takes judicial notice that Colonel Courtney W. Paul assumed duties as the District Engineer and Commander of the Corps's Little Rock District on July 2, 2013. Col. Paul is automatically substituted for Col. Masset pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.

This case is currently before the Court on the parties' briefing submitted in accordance with the Court's briefing schedule (Dkt. Nos. 36, 39). Also before the Court are the McClungs' limited objection to the administrative record and request for supplementation of the record (Dkt. No. 32) and respondents' motion to strike the McClungs' extra-record exhibits (Dkt. No. 37). For the following reasons, the Court denies the McClungs' request to supplement the record(Dkt. No. 32), grants respondents' motion to strike (Dkt. No. 37), and denies the McClungs' petition for review.

I. Factual Background

The United States Army Corps of Engineers exercises control over Greers Ferry Lake and other water resource development projects pursuant to section 4 of the 1944 Flood Control Act, codified as amended at 16 U.S.C. § 460d. The Corps is tasked with maintaining the water areas and shorelines of water resource development projects for public use and recreation "when such use is determined by the Secretary of the Army not to be contrary to the public interest, all under such rules and regulations as the Secretary of the Army may deem necessary . . . ." 16 U.S.C. § 460d. The rules and regulations applicable to water resource development projects administered by the Corps are provided in 36 C.F.R. pt. 327. See 36 C.F.R. § 327.0. Section 327.30 specifically addresses shoreline management and provides in part that it is the Corps's policy to protect and manage shorelines of civil works water resource development projects "in a manner which will promote the safe and healthful use of these shorelines by the public while maintaining environmental safeguards to ensure a quality resource for use by the public." 36 C.F.R. § 327.30(d)(1). Further, "[t]he objectives of all management actions will be to achieve a balance between permitted private uses and resource protection for general public use." Id.

The Corps's policies for shoreline management are implemented through the preparation of a Shoreline Management Plan ("SMP") that the Corps is required to prepare for each project where private shoreline use is allowed. Id., § 327.30(d)(3), (e)(1). Private shoreline uses "may be authorized" consistent with approved use allocations specified in the SMPs. Id., § 327.30(d)(2). Shoreline use permits are required for private structures and activities on project waters and for vegetation modification. Id., § 327.30(f)(1)(ii), (iv).

Appendices A and C to 36 C.F.R. § 327.30 provide the guidelines for granting shoreline use permits and the shoreline use permit conditions. The district commander may revoke shoreline use permits "when it is determined that the public interest requires such revocation or when the permittee fails to comply with terms and conditions of the permit, the Shoreline Management Plan, or of this regulation." 36 C.F.R. § 327.30, app. A, para 3; see also 36 C.F.R. § 327.19(e). Sections 6-07 and 6-13 of the current Greers Ferry SMP reiterate the district commander / district engineer's authority to revoke shoreline use permits when in the public interest or when the permittee fails to comply with the terms and conditions of the permit, the SMP, or the Corps's regulations (AR 117-18).¹

The McClungs own real property adjacent to government property along Greers Ferry Lake. The McClungs purchased their property in late 2010. The previous owners of the property had obtained permits for a private boat dock and a set of stone and mortar steps across the government property, leading to the boat dock (AR 1, 26). Following an inspection of the McClungs' boat dock, the Corps informed Mr. McClung by letter dated August 8, 2011, that the letter permit issued to the previous owner to maintain the steps on public property became null and void upon the sale of the property to the McClungs (AR 1). See 36 C.F.R. § 327.30(g) (shoreline use permits are non-transferrable and become null and void upon sale or transfer of the permitted facility). The Corps informed Mr. McClung that he would need to combine the steps with the permit for the private boat dock and would be charged a reoccurring fee for the use of the right-of-way for the term of the real estate license for the steps (AR 1). The letter asked that Mr. McClung make arrangements to remove the steps from public property if he did not wish to obtain a license for the steps. In September 2011, the McClungs applied for a combinedshore line use permit and license for their boat dock and steps (AR 23). Ranger Gary Ivy met with the McClungs on September 21, 2011, to discuss permitting procedures and regulations of the shoreline program and to obtain a signature for a dock consultation form that must be signed prior to obtaining shoreline use permits (AR 18, 89).

On January 4, 2012, the Corps issued to the McClungs a consolidated shoreline use permit and real estate license for a single-owner dock and stone and mortar steps (AR 15-26, 89). The permit provides that the permittee agrees to comply with the applicable provisions of 36 C.F.R. pt. 327 and the Greers Ferry SMP. The shoreline use permit conditions found at appendix C of 36 C.F.R. § 327.30 are listed on the back of the permit (AR 17). Condition number 18 provides: "No vegetation other than that prescribed in the permit will be damaged, destroyed or removed. No vegetation of any kind will be planted, other than that specifically prescribed in the permit." 36 C.F.R. § 327.30, app. C. Section 8-02(a) of the SMP provides that permits may allow for a maximum limit of "underbrushing" up to 100 feet from a habitable structure, although section 8-02(c) prohibits the use of chemicals for vegetation modified by the public (AR 119-20). The McClungs' permit authorized mowing consistent with the SMP and included a map of the McClungs' property designating the mowing boundary (AR 16, 19).

On June 4, 2012, Ranger Ivy investigated a vegetation kill, or "herbicide trespass," on the public property adjacent to the McClungs' property and found an area of 8,400 square feet of public land that had been sprayed with herbicide (AR 29, 34). The record indicates that Mr. McClung relayed to Ranger Ivy on June 4, 2012, that he had been in Texas at the time but had hired people to spray his property while he was away (AR 34). The McClungs do not dispute that they caused the public property to be sprayed with herbicide.

On August 7, 2012, Col. Masset sent a letter to the McClungs informing them that they were in violation of 36 C.F.R. § 327.14(a), which prohibits the destruction, injury, defacement, removal, or alteration of any vegetative growth on public property, except when in accordance with the written permission of the district commander, and section 8-02(c) of the SMP, which prohibits the use of chemicals for vegetation modification by the public (AR 37-38). Col. Masset determined to implement the following actions: (1) restricting the McClungs' boat dock from any use for a two-year period; (2) terminating the McClungs' real estate license for the stone and mortar steps and requiring removal of the steps within 30 days; (3) requiring the McClungs to cease immediately all mowing on public property; and (4) designating the area between the McClungs' property and the lake as a restoration area. The August 7, 2012, decision letter states that any use of the boat dock facility or any other shoreline violation during the two-year time frame would be grounds for immediate and permanent removal of the boat dock and termination of all shoreline permits.

The McClungs subsequently retained counsel, and Col. Masset agreed on August 29, 2012, to grant a 30-day stay regarding the removal of the stone steps to give the McClungs and their counsel time to initiate an appeal. The McClungs obtained additional extensions and, through counsel, submitted a letter appeal on November 5, 2012 (AR 44). In their appeal, the McClungs argued for a fine rather than permit revocation, stating that the herbicide spray was unintentional and that they were willing to take necessary action to restore and remediate the area. The McClungs requested a hearing pursuant to condition 21 of the shoreline use permit conditions, and the parties agreed to postpone the hearing until after the holidays.

On January 16, 2013, while the McClungs' appeal was pending, Ranger Ivy discovered that the McClungs had gone on to the public property on the shoreline and cut down thevegetation that had been sprayed with herbicide (AR 52-53). The parties again postponed the hearing in order to address both violations. On March 1, 2013, the Corps sent to Mr. McClung a letter informing him that the new penalty, considering both violations, would be the complete revocation of the permit (AR 83).

Col. Masset held a hearing on March...