United States District Court, M.D. Louisiana
GARRY LEWIS, BRENDA GAYLE LEWIS, G. LEWIS LOUISIANA, LLC, ROBERT BEARD, CAROLYN MILTON, AND TOWN OF LIVINGSTON, LA
UNITED STATES OF AMERICA AND UNITED STATES ARMY CORPS OF ENGINEERS
RULING AND ORDER
W. deGRAVELLES JUDGE
matter comes before the Court on the Motion to Partially
Dismiss First Amended Complaint, (Doc. 26), by Defendants,
United States of America and United States Army Corps of
Engineers (“Corps”) (collectively
“Defendants” or “United States”),
under Rule 12(b)(1) and Rule 12(b)(6). Plaintiffs, Garry
Lewis, Brenda Gayle Lewis, G. Lewis Louisiana, LLC, Robert
Beard, Carolyn Milton, and Town of Livingston, LA
(collectively “Plaintiffs” or
“Lewis”),  opposed the motion. (Doc. 28). Defendants
replied. (Doc. 29). Oral argument is not necessary. For the
following reasons, the motion is granted in part and denied
PROCEDURAL BACKGROUND AND REGULATORY FRAMEWORK
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 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”.
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. (Doc. 1, p.
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.
amended their Complaint on September 6, 2018. (Doc. 23).
Defendants responded with the instant motion for partial
dismissal. (Doc. 26).
ruling upon Defendants’ first motion for partial
dismissal, the Court provided a “Regulatory
Framework” to lend clarity to Plaintiffs’ claims
and the nature of this case. (Doc. 22, pp. 1-3). The Court
reproduces same herein in addressing Defendants’ second
motion for partial dismissal.
certain exceptions, the Clean Water Act (“CWA”)
makes unlawful the “discharge of any pollutant by any
person.” See 33 U.S.C. § 1311(a).
“Discharge of a pollutant” includes “any
addition of any pollutant to navigable waters from any source
point, ” and “pollutants” include
“dredged spoil, … rock, sand, [and] cellar
dirt[.]” 33 U.S.C. §§ 1362(6), 1362(12)(A).
“Navigable waters means the waters of the United
States[.]” 33 U.S.C. § 1362(7); see also
Rapanos v. United States, 547 U.S. 715, 730-31 (2006)
(CWA’s definition of “navigable waters” is
“broader than the traditional understanding of that
term, ” but the word “navigable” is not
“devoid of significance”).
and its associated regulations authorize the Corps to issue
permits for the discharge of fill material into the waters of
the United States. See 33 U.S.C. § 1344(a);
Rapanos, 547 U.S. at 723 (“Section 1344
authorizes the Secretary of the Army, acting through the
Corps, to issue permits[.]” (internal quotation marks
omitted)). However, the CWA also provides that the discharge
of fill material from “normal farming, silviculture,
and ranching activities” is generally “not
prohibited by or otherwise subject to regulation” under
Section 1344. 33 U.S.C. § 1344(f)(1)(A).
regulations authorize the Corps’ district engineers to
issue “approved jurisdictional determinations”
stating whether waters of the United States are present on a
particular parcel. 33 C.F.R. §§ 325.9; 331.2
(defining approved jurisdictional determination). Federal
regulations also authorize the issuance of
“preliminary” jurisdictional determinations,
which constitute “written indications that there may be
waters of the United States on a parcel[.]” 33 C.F.R.
§ 331.2 (defining preliminary jurisdictional
determination). Approved jurisdictional determinations are
“clearly designated” actions from which an
administrative appeal may be taken. 33 C.F.R. §§
331.2; 331.5(a)(1). However, preliminary jurisdictional
determinations are characterized as “advisory in
nature” and not appealable. 33 C.F.R. §§
the Corps detects unauthorized activity requiring a permit,
it is authorized to take “appropriate steps to notify
the responsible parties.” 33 C.F.R. § 326.3(c). If
the violation involves an incomplete “project, ”
the notification should be in the form of a cease-and-desist
order; a cease- and-desist order should not be
“necessary” for a violation involving a
“completed project, ” but the district engineer
should still “notify the responsible parties of the
violation.” 33 C.F.R. § 326.3(c)(1), (c)(2). The
Corps has several options for addressing unauthorized
activity, including ordering initial corrective measures,
accepting an after-the-fact permit application, or
recommending civil or criminal litigation to obtain penalties
or require compliance. 33 C.F.R. §§ 326.3(d), (e),
set forth a detailed “summary of facts” in their
First Amended Complaint. (Doc. 23, pp. 5-23). The following
is a sketch of Plaintiffs’ enhanced factual
November 4, 2014, “Lewis” requested from the
Corps a jurisdictional determination concerning the property
at issue in this matter, Milton Lane. (Doc. 23, p. 5). The
intention behind the request was to prepare to begin
construction of a water line. (Doc. 23, p. 6).
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).
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’ voiced concerns.
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”.
November 6, 2015, the Corps requested EPA concurrence that a
“logging operation” on the property did not
qualify for the CWA’s silviculture exemption. 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).
November 25, 2015, the EPA responded to the Corps’
November 6th request, agreeing that the operation
did not fall within the exemption. (Doc. 1-20). After
receiving this letter, the Corps issued a “cease and
desist” letter dated December 4, 2015. (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.” (Id., p.
1). 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).
allege that instead of “processing the …
request”, (which is referring to the permit application
to build the water tower and water lines), 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 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
mis-construe the significance of the EPA letter and aver that
this “Honorable Court (conceded to by EPA counsel) has
ruled the EPA letter has no legal effect, and thus dismissed
EPA from this action …. Plaintiff requests the Court
on its own motion to set aside this [cease and desist] based
upon the pleadings and exhibits”. (Doc. 23, pp. 10-11).
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”. 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. (Doc. 23, p. 14).
September of 2016, Plaintiffs requested an appealable
jurisdictional determination which was not answered.
Plaintiffs plead the “equitable principal of
‘action delayed is action denied’”.
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”. (Doc. 23, p. 16).
aver with particularity that Defendant “treated
differently” the lot 11A waste management company TSWS
LLC d/b/a Pot-O-Gold Rentals LLC (“lot 11A users”
or “Pot-O-Gold”). For example, Plaintiffs claim
that lot 11A users were allowed to conduct waste operations
on wetlands; the CWA was applied differently to lot 11A
users; lot 11A users were allowed to pollute, never received
cease-and-desist letters, and continued to pollute
Plaintiffs’ drinking water. (Doc. 23, pp. 17-18).
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”. Plaintiffs
claim that the “court has ruled there was no such
determination”. (Doc. 23, p. 2 (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).
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, Plaintiffs
contend that Defendants “intentionally delayed, damaged
Plaintiffs and even obstructed appeal rights”.
Town of Livingston, Robert Beard, and Carolyn Milton, have
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) a staying of all actions of
Defendant[’]s unlawful, and commanding timely actions
where lawful, and (4) setting aside an unlawful or
unconstitutional Cease and Desist order[;] (5) [m]onetary
relief for damages caused by unlawful conduct where
appropriate, or retain jurisdiction thereover until ripe
under the Federal Tort Claims Act”. (Id.).
STANDARDS OF REVIEW
Rule 12(b)(1) Standard
courts are courts of limited jurisdiction; without
jurisdiction conferred by statute, they lack the power to
adjudicate claims. In re FEMA Trailer Formaldehyde Prods.
Liab. Litig., 668 F.3d 281, 286-87 (5th Cir.
2012)(citing Kokkonen v. Guardian Life Ins. Co. of
Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391
(1994); Stockman v. FEC, 138 F.3d 144, 151 (5th Cir.
1998), Hall v. Louisiana, 12 F.Supp.3d 878 (M.D. La.
2014)). Under Federal Rule of Civil Procedure 12(b)(1), a
claim is “properly dismissed for lack of subject-matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate” the claim.
Id. (quoting Home Builders Ass’n,
Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
Fifth Circuit Court of Appeal has explained the standard for
motions pursuant to Rule 12(b)(1) as follows:
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the subject matter
jurisdiction of the district court to hear a case.
Fed.R.Civ.P. 12(b)(1). Lack of subject matter jurisdiction
may be found in any one of three instances: (1) the complaint
alone; (2) the complaint supplemented by undisputed facts
evidenced in the record; or (3) the complaint supplemented by
undisputed facts plus the court’s resolution of
disputed facts. Barrera-Montenegro v. United States,
74 F.3d 657, 659 (5th Cir. 1996).
burden of proof for a Rule 12(b)(1) motion to dismiss is on
the party asserting jurisdiction. McDaniel v. United
States, 899 F.Supp. 305, 307 (E.D. Tex. 1995).
Accordingly, the plaintiff constantly bears the burden of
proof that jurisdiction does in fact exist. Menchaca v.
Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.
When a Rule 12(b)(1) motion is filed in conjunction with
other Rule 12 motions, the court should consider the Rule
12(b)(1) jurisdictional attack before addressing any attack
on the merits. Hitt v. City of Pasadena, 561 F.2d
606, 608 (5th Cir. 1977)(per curiam). Considering a Rule
12(b)(1) motion to dismiss first ‘prevents a court
without jurisdiction from prematurely dismissing a case with
prejudice.’ In re FEMA Trailer Formaldehyde Prods.
Liab. Litig., 668 F.3d at 286-87.
In examining a Rule 12(b)(1) motion, the district court is
empowered to consider matters of fact which may be in
dispute. Williamson v. Tucker, 645 F.2d 404, 413
(5th Cir. 1981). Ultimately, a motion to dismiss for lack of
subject matter jurisdiction should be granted only if it
appears certain that the plaintiff cannot prove any set of
facts in support of his claim that would entitle plaintiff to
relief. Home Builders Ass’n of Miss., Inc. v. City
of Madison, Miss., 143 F.3d 1006, 1010 (5th Cir. 1998).
Ramming v. United States, 281 F.3d 158, 161 (5th
Rule 12(b)(6) Standard
Johnson v. City of Shelby, Mississippi, the Supreme
Court explained that “[f]ederal pleading rules call for
a ‘short and plain statement of the claim showing that
the pleader is entitled to relief, ’; they do not
countenance dismissal of a complaint for imperfect statement
of the legal theory supporting the claim asserted.” 135
S.Ct. 346, 346-47 (2014)(citations omitted).
Rule 8(a), the Fifth Circuit Court of Appeal has explained:
The complaint (1) on its face (2) must contain enough factual
matter (taken as true) (3) to raise a reasonable hope or
expectation (4) that discovery will reveal relevant evidence
of each element of a claim. ‘Asking for [such]
plausible grounds to infer [the element of a claim] does not
impose a probability requirement at the pleading stage; it
simply calls for enough facts to raise a reasonable
expectation that discovery will reveal [that the elements of
the claim existed].’
Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257
(5th Cir. 2009)(quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)).
the above case law, the Western District of Louisiana has
Therefore, while the court is not to give the
‘assumption of truth’ to conclusions, factual
allegations remain so entitled. Once those factual
allegations are identified, drawing on the court’s
judicial experience and common sense, the analysis is whether
those facts, which need not be detailed or specific, allow
‘the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.’
[Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)];
Twombly,  U.S. at 556, 127 S.Ct. at 1965. This
analysis is not substantively different from that set forth
in Lormand, supra, nor does this jurisprudence
foreclose the option that discovery must be undertaken in
order to raise relevant information to support an element of
the claim. The standard, under the specific language of
Fed.R.Civ.P. 8(a)(2), remains that the defendant be given
adequate notice of the claim and the grounds upon which it is
based. The standard is met by the ‘reasonable
inference’ the court must make that, with or without
discovery, the facts set forth a plausible claim for relief
under a particular theory of law provided that there is a
‘reasonable expectation’ that ‘discovery
will reveal relevant evidence of each element of the
claim.’ Lormand, 565 F.3d at 257;
Twombly,  U.S. at 556, 127 S.Ct. at 1965.
Diamond Servs. Corp. v. Oceanografia, S.A. De C.V.,
2011 WL 938785, at *3 (W.D. La. Feb. 9, 2011)(quoting
Barber v. Bristol-Myers Squibb, Civ. Act. No.
09-1562 (W.D. La. 2010)).
recently, in Thompson v. City of Waco, Texas, 764
F.3d 500 (5th Cir. 2014), the Fifth Circuit summarized the
standard for a Rule 12(b)(6) motion:
We accept all well-pleaded facts as true and view all facts
in the light most favorable to the plaintiff …. To
survive dismissal, a plaintiff must plead enough facts to
state a claim for relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Our task, then, is to determine whether the
plaintiff states a legally cognizable claim that is
plausible, not to evaluate the plaintiff’s likelihood
Id. at 502-03 (citations and internal quotations
move to partially dismiss Plaintiffs’ First Amended
Complaint “to the extent that it is inconsistent with
the Court’s” prior order on Plaintiffs’
first motion to dismiss and “to the extent that
Plaintiffs raise new claims that are not viable”. (Doc.
26-1, p. 1). Specifically, Defendants move to dismiss: (1)
Count I, a new claim of a regulatory taking and
“attempts to re-plead” Plaintiffs’
procedural due process claim; (2) Count II, a new claim of
substantive due process; (3) Count III, a claim that
Defendants argue “the Court already found was not a
proper claim”; (4) Count IV, only to the extent that
the claim remains “against the Environmental Protection
Agency” (“EPA”); and (5) Count VI, a new
claim for statutory violations of the Clean Water Act. (Doc.
26-1, p. 1).
seek to dismiss Count I of Plaintiffs’ First Amended
Complaint, a new regulatory taking claim, under both Rule
12(b)(1) for lack of jurisdiction and Rule 12(b)(6) for
failure to state a claim. (Doc. 26-1, p. 8). Regarding
jurisdiction, Defendants argue that takings claims against
the federal government are premature until the property owner
has availed itself of the process under the Tucker Act, 28
U.S.C. § 1491. (Doc. 26-1, p. 8 (citing Williamson
Cty. Reg’l Planning Comm’n v. Hamilton Bank of
Johnson City, 473 U.S. 172, 195 (1985); see also
Preseault v. ICC, 494 U.S. 1, 11 (1990))). Defendants
argue that Plaintiffs have not plead facts establishing
whether their purported damages are greater than or less than
$10, 000; therefore, Defendants aver that Plaintiffs have not
established jurisdiction. (Doc. 26-1, p. 8 (explaining that
the Court of Federal Claims has exclusive jurisdiction over
takings claims over $10, 000 and has concurrent jurisdiction
with district courts for claims under $10, 000)).
Plaintiffs’ Complaint prays for injunctive and
declaratory relief only, not compensatory damages. Therefore,
Defendants argue, Plaintiffs have not established
jurisdiction in the pleading of their case. (Doc. 26-1, p.
also argue that Plaintiffs’ takings claim is not ripe
until “the permit process” is completed. Simply
asserting regulatory jurisdiction is not a
“taking” of property because of the possibility
of a permit. Defendants argue that only when a permit is
denied to prevent “economically viable use” of
the property has a “taking” occurred. (Doc. 26-1,
pp. 9-10 (citing United States v. Riverside Bayview
Homes, Inc., 474 U.S. 121, 127 (1985)).
next acknowledge that this Court’s previous Order found
that Plaintiffs’ alleged deprivation of silviculture
rights “might support a procedural due process
claim”, but argue that the Court’s
“decision was erroneous”. (Doc. 26-1, p. 10
(referring to Doc. 22); see Doc. 26-1, pp. 11-13 for
Defendants’ reasoning as to why this Court’s
prior ruling was “erroneous”). Defendants also
argue that Plaintiffs’ First Amended Complaint
“rehashes” allegations of deprivations of
protected interests “that the Court has already
rejected”. (See Doc. 26-1, pp. 13-14 for the
purported “rehashed” allegations). Therefore,
Defendants seek dismissal of Plaintiffs’ procedural due
process claim or clarification from the Court on the
“limited extent” on which Plaintiffs may proceed.
(Doc. 26-1, pp. 10, 14).
Count II, Defendants argue that Plaintiffs’ claims of
substantive due process do not “shock the
conscience”. (Doc. 26-1, p. 15 (citing City of
Sacramento v. Lewis, 523 U.S. 833, 846 (1998)).
Specifically, Plaintiffs claim that Corps personnel showed
bias against Lewis based upon the following: (1) an email in
which the chief of the Regulatory Branch of the New Orleans
District called Lewis “very mendacious”, (Doc.
26-1, p. 15 (citing Doc. 23, ¶ 59)); (2) a statement by
a Corps employee that Plaintiffs’ proposed construction
of water lines “is only needed to facilitate future
development”, (id. at ¶ 60); (3)
different treatment of a neighboring landowner, (id.
at ¶ 61); and (4) allegations regarding the Corps’
refusal to allow the use of Plaintiffs’ land for
temporary flood shelter. (Id. at ¶ 62).
Defendants argue that as plead, the allegations do not
support viable claims of bias. (Doc. 26-1, pp. 15-17).
plead that they reserve equitable estoppel for “later
proceedings”. (Doc. 23, ¶ 63). Defendants argue,
however, that the Court stated in its prior Order, (Doc. 22,
p. 16), that “equitable estoppel is not, in itself,
either a claim or defense”. Defendants ask the Court to
dismiss Plaintiffs’ estoppel claim because it
“does not make any sense for Plaintiffs to reserve a
claim that is not a claim”. (Doc. 26-1, p. 17).
the EPA is not named as a party in the caption of the First
Amended Complaint, Defendants argue that the EPA is no longer
a named Defendant. (Doc. 26-1, p. 17). However, since Count
IV and Paragraph 66 contain allegations of unreasonable delay
by the EPA, Defendants move to dismiss this claim adverse to
the EPA. Defendants argue that this Court dismissed this
claim in its prior Order. (Id. (citing Doc. 22, p.
17)). Further, Defendants argue that because the EPA was not
required to provide a hearing on an advisory letter that it
issued or to ...