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White Oak Realty, LLC v. United States Army Corps of Engineers

United States District Court, E.D. Louisiana

March 28, 2017


         SECTION “H” (3)



         Before the Court is Defendants' Motion for Summary Judgment (Doc. 185). For the following reasons, the Motion is GRANTED.


         This is a civil action for declaratory and injunctive relief. The plaintiffs are White Oak Realty, LLC and Citrus Realty, LLC. The defendants are the United States Corps of Engineers (the “Corps”) and various Corps employees. The dispute involves mitigation requirements imposed by the Corps on a tract of land in Southeast Louisiana (“Idlewood Stage 2”), jointly owned by Plaintiffs.

         In response to the devastation caused by Hurricanes Katrina and Rita, Congress authorized the Corps to undertake a series of projects collectively known as the Hurricane and Storm Damage Risk Reduction System (“HSDRRS”). One of these projects involves the use of soil and clay (“borrow material”) to reinforce levees and floodwalls in the Gulf South. In order to respond to the unprecedented amount of borrow material needed for this project, the Corps instituted the contractor-furnished borrow program. The contractor-furnished borrow program allows landowners to have their land pre-qualified as a suitable source for borrow material based on certain requirements.[1] These government-approved properties are then placed on a list for selection as supply sources by contractors working on the levee project. Contractors may then select a borrow supplier from that list, and the borrow is excavated for use on the Corps's projects.

         At some point in 2010, Plaintiffs discovered the presence of borrow material on their property. They subsequently filed a “suitability determination” with the Corps to confirm the borrow material could be used in HSDRRS projects. Some of the property (Idlewild Stage 1) was quickly qualified and clay mining began. On other portions (Idlewild Stages 2 and 3), the Corps approved the land's use for borrow material but found that the excavation of borrow material would cause “unavoidable impacts” to the bottomland hardwood (“BLH”) forests on the property, and therefore mitigation would be required. In addition, the portions of the land that were wetlands were excluded from excavation. Plaintiffs, therefore, sought to mine clay only from the uplands portions of Idlewild Stage 2 and that area was later cleared of the BLH forest.

         In a letter dated November 4, 2010, the Corps notified Plaintiffs that Idlewood Stage 2 “appears to be acceptable for use as a source” of borrow material. The letter confirmed the preliminary report's determination that excavation would harm the environment. The letter required “proof of mitigation to the Corps[] . . . prior to excavation.” The Corps issued a similar letter on April 14, 2011, reaffirming the requirement that the impacts to the BLH forests on the land be mitigated. The letter informed Plaintiffs that their “compensatory mitigation requirements may be met” by obtaining credits from select mitigation banks.

         Plaintiffs subsequently hired Mitigation Strategies, LLC (“Mitigation Strategies”) hoping to convince the Corps of the “legal and factual errors underlying [its] mitigation requirements.” Mitigation Strategies argued to the Corps on numerous occasions that mitigation was neither necessary nor appropriate under the law. In the alternative, if mitigation was required, Mitigation Strategies argued the law required in-kind mitigation, rather than the purchase of credits from mitigation banks.

         The Corps disagreed. A February 20, 2013 letter from the District Commander reiterated the Corps's position that if borrow material from Idlewood Stage 2 is used in connection with the HSDRRS project, the impacts to the BLH forests on that land must be mitigated (the “Mitigation Requirement”). It further confirmed the Corps's position that such mitigation must occur through the purchase of mitigation bank credits (the “Purchase Requirement”).

         As a result of the Corps's position, Plaintiffs filed this suit, arguing that the Water Resource Development Act of 2007 (“WRDA”), 33 U.S.C. § 2201 et seq., does not require mitigation for Idlewood Stage 2 or alternatively, that the WRDA does not authorize the Corps to mandate the purchase of mitigation credits as the sole form of compensatory mitigation. This Court has previously dismissed all of Plaintiff's claims on summary judgment, save a regulatory takings claim. Defendant has filed the instant Motion for Summary Judgment seeking dismissal of that remaining claim.


         Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”[2] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”[3]

         In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.[4] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”[5] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”[6] “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial.”[7] “We do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the necessary facts.”[8] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”[9]


         I. Procedural History

         As a threshold matter, Plaintiffs dispute the appropriateness of considering Defendants' second motion for summary judgment. They argue that Defendants' motion is improper under the scheduling order and should be considered under the standard of a motion for reconsideration.

         This case has followed an unusual procedure. Initially, the Court set a scheduling order establishing a trial date, as well as a deadline for non-evidentiary pre-trial motions. After the parties filed a motion for judgment on the pleadings and cross-motions for summary judgment, however, the Court vacated the scheduling order pending resolution thereof.[10] The parties moved for summary judgment on all claims except the regulatory taking claim at issue herein. The Court granted summary judgment in Defendants' favor and dismissed all of Plaintiffs' claims, save their regulatory takings claim. Thereafter, a scheduling conference was held to select a trial date upon which to try Plaintiffs' remaining claim. In addition to a trial date, the Court set a new discovery deadline and pre-trial motion deadline as well. Thereafter, the parties conducted discovery, and Defendants filed the instant motion for summary judgment within the deadline set by the Court.[11] Defendants argue that the deposition testimony obtained after their first motion for summary judgment was important in making their arguments in the instant motion.

         “Courts have found that a subsequent summary judgment motion based on an expanded record is permissible.”[12] The Fifth Circuit has stated that such a determination is in the district court's discretion.[13] “That discretion may be exercised whether or not new evidence is submitted with the subsequent motion.”[14] This Court, therefore, finds it appropriate to allow Defendants' successive summary judgment motion. Defendants move for summary judgment on a claim not yet addressed by this Court after additional discovery and within the deadlines set by the Court's revised scheduling order. It is in the interest of efficiency to review Defendants' motion in lieu of proceeding directly to a potentially unnecessary trial. Accordingly, this Court rejects Plaintiffs' procedural objections and proceeds to the merits of Defendants' motion.

         II. Defendants' ...

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