McClung v. Paul

• Decision Date: 08 June 2015
• Docket Number: No. 14–3463.,14–3463.
• Citation: 788 F.3d 822
• Parties: John McCLUNG; Kim McClung, Petitioners–Appellants v. Colonel Courtney W. PAUL, in his official capacity as District Engineer, Little Rock District, U.S. Army Corps of Engineers; United States Department of the Army, Respondents–Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

788 F.3d 822

John McCLUNG; Kim McClung, Petitioners–Appellants

v.Colonel Courtney W. PAUL, in his official capacity as District Engineer, Little Rock District, U.S. Army Corps of Engineers; United States Department of the Army, Respondents–Appellees.

No. 14–3463.

United States Court of Appeals, Eighth Circuit.

Submitted: April 13, 2015.

Filed: June 8, 2015.

Eric Wolfgang, argued, Dallas, TX (David W. Sterling, Melanie McClure, North Little Rock, AR, on the brief), for Petitioners–Appellants.

Stacey E. McCord, AUSA, argued, Little Rock, AR, for Respondents–Appellees.

Before MURPHY, COLLOTON, and KELLY, Circuit Judges.

Opinion

MURPHY, Circuit Judge.

John and Kim McClung bought a vacation home next to Greers Ferry Lake and received a permit to maintain a boat dock and stone steps on the public land between their property and the lake. The lake and shoreline area is federal government property managed by the Army Corps of Engineers. The Corps twice sanctioned the McClungs for violating permit conditions and regulations, first for causing herbicide to be sprayed on public property and then for removing brush from the previously sprayed land. In its final sanctions order the Corps revoked the McClungs' permit for the dock and steps. The McClungs challenged this administrative decision in federal court. The district court¹ determined that the sanctions were not arbitrary and capricious and did not violate due process. The McClungs appeal, and we affirm.

I.

A.

The Army Corps of Engineers manages federal water resource development projects such as Greers Ferry Lake under 16 U.S.C. § 460d, part of the 1944 Flood Control Act. Regulations governing public use of such federal water resources are found in 36 C.F.R. pt. 327. No private structure may be located on public lands or waters without a permit, and removal or alteration of public property (including vegetation) is prohibited without written permission. 36 C.F.R. §§ 327.14, 327.20, 327.30(f)(1). The Corps issues permits for private shoreline use in accordance with the Shoreline Management Plan (SMP) for each project. 36 C.F.R. §§ 327.19(e), 327.30(d)(2)-(3). The Corps district commander may revoke 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 [or] the Shoreline Management Plan.” 36 C.F.R. § 327.30, app. A(3).

In 2010, the McClungs purchased a vacation property in Heber Springs, Arkansas which is adjacent to the government owned shoreline of Greers Ferry Lake. The prior owner of this property had received a permit from the Corps allowing a boat dock and a set of stone steps on the lakeshore. Such permits are nontransferable and are voided upon the sale of the property. 36 C.F.R. § 327.30(g). Before obtaining their own permit, the McClungs met with Ranger Gary Ivy in September 2011 and were informed of permit procedures and regulations. The McClungs applied for a shoreline use permit for the dock and steps, and the Corps issued such a permit on January 4, 2012.

The permit issued to the McClungs stated that one of its conditions was compliance “with all applicable provisions of 36 C.F.R., ch.3, part 327 and the Greers Ferry Shoreline Management Plan.” Violation of permit conditions may be punished by revocation of the permit. 36 C.F.R. § 327.30, app. A(3). Specific shoreline use permit conditions from 36 C.F.R. § 327.30, app. C were printed on the back, including condition 18: “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.” Sections 8–01 and 8–02 of the Greers Ferry SMP authorize permits for certain types of vegetation modification including removal of underbrush within 50–100 feet of a residence, but the use of chemicals for vegetation modification is prohibited. The McClungs received a “mowing permit” with a map specifying the area within 100 feet of their home where vegetation modification was permitted.

On June 4, 2012, Ranger Ivy investigated a vegetation kill on the shoreline between the McClungs' property and the lake. He determined that 8,400 square feet of federal land had been sprayed with herbicide and that the width of the affected area was approximately the same as the width of the McClungs' lot. The area sprayed with herbicide was not part of the McClungs' mowing permit area. When Ivy contacted John McClung, McClung explained that he had hired someone to spray his property and that person must have mistakenly sprayed the public property. The administrative record contains a memo from Ivy describing this investigation and pictures he took of the affected land.

The Corps determined that the herbicide spray violated the conditions of the McClungs' shoreline use permit. An internal Corps memorandum included in the administrative record shows that the Corps considered a fine of $75 or $250 as possible sanctions. However, the operations project manager recommended that Colonel Masset² instead revoke the McClungs' permit in its entirety for this herbicide violation. The memorandum expresses concern that a small fine would “establish[ ] precedence that it is ‘ok’ to violate the terms and conditions of permits” and could “lead to additional violations by neighbors” who might decide that it is worth paying a fine to get a better view of the lake. This internal memorandum acknowledged that revoking the permit for this first time violation “may be seen as punitive ... [but this] is the way of the future. Somebody has to be first. It is not out of our authority to take this action, ... just out of the norm.”

Partially adopting the recommendation from this memorandum, Colonel Masset decided to restrict any use of the McClungs' boat dock for two years and to terminate the permit for the stone steps. A letter informed the McClungs of this sanction. It stated that they had violated 36 C.F.R. § 327.14(a), which prohibits “[d]estruction, injury, defacement, removal or any alteration of public property including ... vegetative growth,” permit conditions found in 36 C.F.R. § 327.30, and the prohibition on the use of chemicals for vegetation modification found in Greers Ferry SMP, § 8–02(c). The McClungs would be required to remove the steps or to pay for their removal. The letter also instructed that the McClungs “must immediately cease mowing on public property.”

B.

The McClungs sought and Colonel Masset granted a stay of the requirement that they remove the stone steps so they could pursue an internal appeal. They subsequently submitted an appeal to the Corps and requested a hearing. Included with the appeal was a letter from engineer Don Potter which stated that he had examined the steps and had concluded that their removal could have negative environmental effects such as erosion.

Before the hearing on this internal appeal, Ranger Ivy discovered on January 16, 2013 that the McClungs had cleared the remaining live and dead vegetation from the previously sprayed shoreline area. Colonel Masset was notified about Ivy's discovery, and photos showing some vegetation regrowth on October 4, 2012 and the bare shoreline on January 16, 2013 were included in the administrative record. Colonel Masset sent a second violation letter to the McClungs stating that their consolidated dock and steps permit was permanently revoked due to “repeated violations” of 36 C.F.R. § 327.14 and permit conditions found in 36 C.F.R. § 327.30, app. C, including the prohibition on vegetation modification found in condition 18.

At a hearing on March 28, 2013 before Colonel Masset, the McClungs admitted that they had cleared shoreline vegetation but said that they did so because they wanted to rectify the herbicide damage by replanting the area. No transcript was made of the hearing. The McClungs allege that Colonel Masset commented that he “was seen as too lenient on other violators” and that prior violators “got away with improving the value of their land for insignificant monetary punishment.” They also claim that they explained to Colonel Masset that they had removed the brush by hand, not with machines, and argued that therefore no “mowing” had occurred. Included in the administrative record is a receipt the McClungs provided from a nursery and landscaping company as proof of their intent to replant the area and their proposed settlement which would have involved a fine and required them to pay for remediation of the shoreline. The McClungs had never obtained permission from the Corps to plant anything on public lands.

The Corps issued a final administrative order on April 11, 2013 revoking the McClungs' permit for the boat dock and stone steps. The order included factual findings that the McClungs were responsible for the initial herbicide spray and that they had later returned to the same area “and mowed the remaining and recovering vegetation that had not been killed earlier by the herbicide.” It stated that these actions violated 36 C.F.R. § 327.14(a) and Greers Ferry SMP § 8–02. The order listed several reasons for imposing permit revocation as the penalty. The McClungs had been made aware of applicable regulations and the August 7 violation letter had instructed them to “cease mowing on public property.” Rather than heeding this warning, “McClung blatantly disregarded the letter by proceeding to mow [federal government] property ... despite its owner's direct prohibition against such action.” The Corps concluded that no lesser penalty would be appropriate because “[s]uch behavior is not demonstrative of either remorse or understanding, but rather an inability to acknowledge the fundamental integrity of government property.”

C.

On May 10, 2013, the McClungs petitioned for review of this final administrative order in the Eastern District of Arkansas under the Administrative Procedures Act, 5 U.S.C. §§ 701 –06. The McClungs claimed that the decision to revoke their...