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Lewis v. United States

United States District Court, M.D. Louisiana

September 27, 2019




         This 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”), [1] 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 in part.


         Plaintiffs 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. 2).

         Defendants 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. 22).

         Plaintiffs amended their Complaint on September 6, 2018.[2] (Doc. 23). Defendants responded with the instant motion for partial dismissal. (Doc. 26).

         In 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.

         With 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”).

         The CWA 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).

         Federal 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. §§ 331.2; 331.5(b)(9).

         When 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), 326.5(a).


         Plaintiffs 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 allegations.

         On 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).

         Plaintiffs 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).

         Defendants 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. (Id.).

         On 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”. (Id.).

         On 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).

         On 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).

         Plaintiffs 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).

         Plaintiffs 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).

         In 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).

         Plaintiffs 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).

         Plaintiffs 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).

         Plaintiffs 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”. (Id.).

         Plaintiffs, 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.).


         A. Rule 12(b)(1) Standard

         Federal 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. 1998)).

         The 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).

         The 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. 1980).

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 Cir. 2001).

         B. Rule 12(b)(6) Standard

         In 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).

         Interpreting 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)).

         Applying the above case law, the Western District of Louisiana has stated:

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, [550] 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, [550] 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)).

         More 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 of success.

Id. at 502-03 (citations and internal quotations omitted).


         A. Defendants’ Motion

         Defendants 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).

         Defendants 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. 9).

         Defendants 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)).

         Defendants 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).

         Regarding 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).

         Plaintiffs 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).

         Because 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 ...

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