Ellison v. Conner , 153 F.3d 247 ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
___________________
NO. 97-30359
NO. 98-30203
___________________
KATHRYN GWIN ELLISON; WHISKEY BAY ACRES L. L. C.;
DAVID M. ELLISON, JR., Plaintiffs - Appellants
vs.
WILLIAM L. CONNOR, District Engineer,
Department of the Army Corps of Engineers;
UNITED STATES OF AMERICA, on behalf of
U. S. Army Corps of Engineers, Defendants - Appellees
--------------------------------------------------
UNITED STATES OF AMERICA,
Plaintiff - Counter Defendant - Appellee
vs.
JIMMY D. LAVIOLETTE,
Defendant - Counter Claimant - Appellant
_________________________________________________________
Appeals from the United States District Court
for the Western District of Louisiana
_________________________________________________________
September 11, 1998
Before KING and DAVIS, Circuit Judges, and VANCE*, District Judge
SARAH S. VANCE, District Judge:
Before the Court are the consolidated appeals of Kathryn and
David Ellison (“Ellisons”) and Jimmy D. Laviolette
(“Laviolette”). The appellants appeal two adverse district court
decisions involving the U.S. Corps of Engineers’ (“Corps”)
*
District Judge of the Eastern District of Louisiana,
sitting by designation.
refusal to issue permits allowing them to build camp-homes on
their property in the Atchafalaya floodway. We agree with the
district court that it lacked subject matter jurisdiction to
review the Corps’ permitting decision under the Administrative
Procedure Act. We find that the district court erred in finding
that the Ellisons lacked standing to assert constitutional due
process claims, but we agree with the district court’s reasoning
that such claims are meritless. Finally, we affirm the district
court’s grant of summary judgment upholding the Corps’ right to
require Laviolette to remove his camp from the floodway.
I. Factual Background
In 1985, the Ellisons acquired 1206 acres of land from
Texaco, Inc. in St. Martin Parish, Louisiana. The property
fronts the Whiskey Bay Pilot Channel, a waterway that connects
the Atchafalaya River and the Mississippi River. The Ellisons’
land lies within the Whiskey Bay Pilot Channel Project, which was
developed by the Corps as part of the Atchafalaya Basin Floodway
System. The Project was authorized by Congress in legislation
providing for flood control on the Mississippi River and its
tributaries. See Mississippi River Flood Control Act, 49 Stat.
1508 (June 15, 1936).
The Ellisons purchased their tract subject to a “perpetual
flowage, channel and disposal” easement that was granted to the
2
United States from the Texas Company on August 4, 1941. The
easement grants the United States broad, perpetual rights to
enter, excavate, and flood the property, as well as to construct
levees, embankments, bridges, highways, and utilities thereon,
pursuant to its management of flooding and navigation on the
Mississippi River and its tributaries.
The 1941 deed reserves to Texas Company and its assigns, in
addition to certain rights related to mineral development, all
rights and privileges that do not interfere with the easement.
However, the deed contains a building restriction which requires
the permission of the Corps to build any structures that “may in
any way interfere” with navigation in any channel that "may be
excavated" or with "the construction, maintenance or repair of
any channels, or any levees or other works to be built" on the
land.
In the early 1990s, Ellison sold two small tracts to third
parties, and the United States acquired by condemnation the
remainder of the 1206 acres. However, on June 21, 1993 the
United States revested in the Ellisons the 110.9 acres at issue
in this case.
In reaching the agreement to revest the land, the Ellisons
allege that the Corps orally agreed to grant permits for the
development of recreational campsites on the property. The only
evidence of the alleged agreement was a June 30, 1993 letter from
Thad J. Brown, Chief of the Real Estate Division of the
3
Department of the Army. The letter provided in part:
In connection with your request for an outline of
our permit application process . . .
Upon receipt of your [permit] request, we will .
. . review for such things as present or future
Corps activities in the area (future plans to
widen, deepen, or move the channel, plans to
dredge the channel), the historical,
environmental and cultural resources of the
planned site (Indian mounds or artifacts, eagle
nest, etc.), and either approve the request, deny
the request for specific reasons, or require
modification to the request that we now negotiate
with you.
The Ellisons proceeded to subdivide a portion of their
property into 55 one acre lots, known as the Whiskey Bay Acres
Subdivision. By October 8, 1995, the Ellisons had sold 38 lots,
including one to appellant Laviolette. Laviolette’s deed
reflected the existence of the easement and recited the need to
acquire a permit from the Corps before construction of any
improvements.
Despite the language in his deed, Laviolette moved onto his
lot a wooden camp-house in December 1994. On April 13, 1995, the
Corps advised Laviolette of the requirement to obtain a permit
for the structure. Laviolette responded by returning the letter
with a handwritten note stating, “Please issue me a permit.
Thank you, Jimmy D. Laviolette.” In addition to Laviolette,
other lot owners submitted permit requests to the Corps. The
Ellisons did not submit a request for permit.
On October 10, 1995, the Corps notified Laviolette, Ellison
4
and the other lot owners that, after consideration of its present
and future requirements, that appellee “found it to be in the
best interest of the United States to prohibit the construction
or placement of any structures on th[e] land.” The letter
further requested that any existing structures be removed. The
Corps agreed, however, to allow the placement of easily removable
items such as tents and wheeled trailers less than 40 feet long
upon obtaining a real estate permit. It noted, however, that
regulatory permits under the Clean Water Act would also be
required if the property were determined to be wetlands.
On October 11, 1995, the Ellisons wrote to Colonel Clow,
District Engineer of the Corps, outlining their understanding of
the history of the problem and requesting a meeting. Clow met
with the Ellisons and responded by letter on November 17, 1995,
affirming the Corps’ decision of October 10.
Clow noted that the Corps’ letter of June 30, 1993 was based
on the understanding that the Ellisons intended to apply for a
single camp permit for their property. He stated that the
Ellisons had not indicated their intent to subdivide the
property, which would have met with a different response. Clow
stated, “While it is true that we currently have no plans to
modify the Whiskey Bay Pilot Channel, the dynamic nature of the
Atchafalaya Basin may require such action in the future.”
5
II. Proceedings Below
In response to the Corps’ action, the Ellisons filed suit
for declaratory relief and a stay of further action by the Corps.
The Ellisons challenged the Corps’ decision as arbitrary,
capricious and made in violation of applicable permitting
procedures. They asserted that their due process rights were
violated and that the Court should declare that they have the
right to build the contested structures. On September 1, 1997,
the district court dismissed the action, holding that it lacked
subject matter jurisdiction to review the Corps’ decision under
the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et
seq., as it was an action “committed to agency discretion by law”
under § 701(a)(2) of the APA. The district court also found that
the Ellisons lacked standing to assert a constitutional due
process claim and that such constitutional claims were meritless
in any event.
Meanwhile, on February 18, 1997, the United States sued
Laviolette to force him to remove his camp from the property
covered by the easement. Based on its interpretation of the
easement granted in 1941, the district court granted the
government’s motion for summary judgment, finding that the Corps
was “well within its rights” in denying Laviolette’s permit and
requiring him to remove the existing structure. The court also
held that there was no agreement binding the Corps to issue
6
Laviolette a permit.
These consolidated appeals challenge each of the district
court’s decisions.
III. Standards of Review
This Court reviews a district court’s dismissal for lack of
subject matter jurisdiction de novo. Carney v. Resolution Trust
Corp., 19 F.3d 950, 954 (5th Cir. 1994).
We review a dismissal for failure to state a claim upon
which relief may be granted under the same standard used by the
district court: a claim may not be dismissed unless it appears
certain that the plaintiffs cannot prove any set of facts in
support of their claim that would entitle them to relief. Norman
v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).
We review a district court’s grant of summary judgment de
novo, applying the same standard of review as would the district
court. Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir.
1997). Summary judgment is proper only when it appears that
there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c). On summary judgment, the inferences to be drawn from
the underlying facts contained in the record must be viewed in
the light most favorable to the party opposing the motion.
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).
7
IV. The Ellisons’ Appeal
The Ellisons assert that the district court erred in finding
that the Corps’ decision to deny permits was “committed to agency
discretion by law” and hence was unreviewable under the APA. 5
U.S.C. § 701(a)(2).
The APA allows any person “adversely affected or aggrieved
by agency action within the meaning of a relevant statute” to
obtain “judicial review thereof.” 5 U.S.C. § 702. The APA
precludes judicial review, however, when the “agency action is
committed to agency discretion by law.” Id., § 701(a)(2).
The APA’s exception to judicial review is “very narrow” and
applies only “in those rare instances where ‘statutes are drawn
in such broad terms that in a given case there is no law to
apply.’” Citizens to Preserve Overton Park, Inc. v. Volpe, 401
U.S. 402, 410 (1971), citing S. Rep. No. 752, 79th Cong., 1st
Sess., 26 (1945); Suntex Dairy v. Block, 666 F.2d 158, 163-64
(5th Cir. 1982). An agency’s own regulations can provide the
requisite “law to apply.” McAlpine v. United States, 112 F.3d
1429, 1434 (10th Cir. 1997); Center for Auto Safety v. Dole, 828
F.2d 799, 803 (D.C. Cir. 1987).
Under § 701(a)(2) of the APA, review is not available “if
the statute is drawn so that a court would have no meaningful
standard against which to judge the agency’s exercise of
8
discretion.” Heckler v. Chaney, 470 U.S. 821, 830 (1985).
Accordingly, the Court has “emphasized that § 701(a)(2) requires
careful examination of the statute on which the claim of agency
illegality is based.” Webster v. Doe, 486 U.S. 592, 600 (1988).
Finally, this Court has determined that practical policy
issues also should be considered. Bullard v. Webster, 623 F.2d
1042, 1046 (5th Cir. 1980). We held in Bullard that “[t]here
must be a weighing of the need for, and feasibility of, judicial
review versus the potential for disruption of the administrative
process.” Id.
Even if the substance of an agency’s decision is beyond
review as discretionary, an agency’s failure to follow its own
regulations may be challenged under the APA. See Webster, 486
U.S. at 601 n.7 and cases cited therein.
A. Permitting Procedures
In order to ascertain whether the relevant law gave the
Corps discretion to deny the permits, the Court must first
determine the authority upon which the Corps relied in making its
decision. The Ellisons assert that the Corps’ actions were
governed by the Rivers and Harbors Act ("RHA”), 33 C.F.R. § 403,
et seq., and the regulations adopted pursuant to that statute.
Those regulations set out many substantive and procedural
requirements for the issuance of permits. See generally 33
9
C.F.R. 320, 325, 330. The Corps, however, argues that it made
its permitting decision as a property owner under regulations
adopted pursuant to 5 U.S.C. § 301. That statute authorizes
department heads to prescribe regulations for the use of a
department’s property. See 5 U.S.C. § 301. The Corps asserts
that the applicable regulation is 33 C.F.R. § 211, which governs
temporary uses of the Corps’ own property and that this
regulation commits the permitting decision to its discretion.
Appellants contention that the Corps necessarily acted under
the RHA fails for three reasons. First, the building restriction
and permit requirement at issue derived from an easement, which
is an interest in real estate owned by the United States. This
suggests the applicability of Section 211, which governs the
Corps’ real estate interests. See 33 C.F.R. § 211 (governing
"temporary use by others" of the Corps’ real estate). Further,
the easement did not refer to RHA permitting procedures. Indeed,
in its October 1995 letter, the Corps described the permits in
issue as "real estate permits" and informed landowners that
regulatory permits could also have to be obtained, even if it
issued a real estate permit to install a temporary camp.
Second, it would be pointless to obtain a broad, perpetual
flowage easement if the only way the Corps could prevent
potential obstruction of the easement was to use regulatory
permitting procedures. Third, depending on the nature of the
10
property, real estate permits could be required under the
easement, as well as regulatory permits under the RHA or the
Clean Water Act.
Further, we do not agree with appellants’ argument that the
Corps was required to follow the enumerated "regulatory policies"
set out in 33 C.F.R. § 320 in dealing with its own real estate
interests. Section 320.2(e) provides that for temporary uses of
property constructed by the Corps, permits are to be issued under
existing real estate regulations. In addition, Section 320.2
lists the source authorities for requiring regulatory permits,
and none is as broad as the permit requirement stated in the
easement. This suggests that the easement authorized the Corps
to require permits in circumstances in which a regulatory permit
would not be required. Thus, we find that the Corps acted as a
property owner when it denied the permits.
When the Corps acts in a proprietary capacity, its conduct
is governed by 33 C.F.R. 211. This regulation was adopted
pursuant to 5 U.S.C. § 301, which provides that “The head of an
Executive department or military department may prescribe
regulations for the . . . custody, use, and preservation of
its . . . property.” Section 211 governs “temporary use by
others” of the Corps’ real estate. 33 C.F.R. § 211. "Real
estate" is defined to include "rights-of-way or easements,
whether temporary or permanent." § 211.1. In particular, §
211.9 applies to "Applications for leases, easements, licenses
11
and permits." It provides:
Applications for use of Civil Works property should be
made to the District Engineer of the district within
the boundaries of which the real estate is located.
The District Engineer will determine whether the
property will be required for public use during the
period of the contemplated grant and whether the
requested grant will interfere with any operations of
the United States.
33 C.F.R. § 211.9. No other procedural or substantive
requirements are imposed on the Corps in making this
determination.
Our review of the relevant statutory and regulatory
framework convinces us that § 211.9 commits the permitting
decision at issue to agency discretion and precludes judicial
review. In Suntex Dairy, we adopted a useful analytical
framework for resolving this issue. In that case, a statute
required the Secretary of Agriculture to decide whether issuance
of an order would “tend to effectuate the declared policy” of the
relevant Act, which was, inter alia, to regulate milk marketing.
Suntex Dairy, 666 F.2d at 160-61. We found that this provision
did not grant complete discretion to the Secretary because it
also required her to hold a public hearing and imposed “rigorous
obligations on the Secretary to develop an evidentiary record” to
support her determination. Id. at 164. Another provision of the
same law required the Secretary to determine whether a proposed
order was “the only practical means of advancing the interests of
the producers.” Id. at 161. We found that this provision gave
12
the Secretary discretion because it did not require the
consideration of specific factors, the making of findings or the
development of any additional evidentiary record. Id. at 164-65.
We noted that without these, the judiciary was in no position to
gainsay the Secretary’s determination as arbitrary, capricious or
an abuse of discretion. Id. at 166.
Here, the statute authorizing Section 211.9, 5 U.S.C. § 301,
does not contain standards or evidentiary requirements for the
issuance of regulations. Further, the regulation in issue, §
211.9, lacks standards in the same way as the provision found
discretionary in Suntex. Section 211.9 requires the Corps to
determine whether the property in question will be “required for
public use” during the period of the contemplated grant and
“whether the requested grant will interfere with any operations
of the United States.” These standards are of the same level of
generality as the discretionary statute in Suntex, which required
the Secretary to determine whether an order “was the only
practical means of advancing the interests of the producers.”
Further, as in Suntex, § 211.9 does not require the Corps to
develop any factual record to support its determination.
In contrast, the RHA provides an example of a statute that
does not give the Corps complete discretion over permits. A §
320.4 permit requires the Corps to consider the following in
part:
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. . . All factors which may be relevant to the
proposal must be considered including the
cumulative effects thereof: among those are
conservation, economics, aesthetics, general
environmental concerns, wetlands, historic
properties, fish and wildlife values, flood
hazards, floodplain values, land use, navigation,
shore erosion and accretion, recreation, water
supply and conservation, water quality, energy
needs, safety, . . . mineral needs,
considerations of property ownership, . . .”
The regulation also sets forth pages of general criteria to be
considered in the examination of every application. Id.
Further, specific procedural requirements for processing
applications and for providing public notice are also required.
Id. § 325.1-3. In contrast to the extensive requirements of the
RHA regulations, the broad language of § 211.9 does not require
the Corps to weigh alternative uses of the property or to follow
any particular permitting procedure.
The Supreme Court’s decision in Webster further supports our
conclusion. In Webster, a discharged CIA employee contended that
his termination violated the agency’s regulations. 486 U.S. at
600. The relevant statute allowed termination of a CIA employee
whenever the Director “shall deem such termination necessary or
advisable in the interests of the United States.” Id. The Court
held that the “standard fairly exudes deference to the Director.”
Id. The Court also based its decision on an analysis of “the
overall structure” of the National Security Act, under which the
CIA director was given responsibility to protect the integrity of
14
the agency and intelligence sources, which was essential to
national security. Id. at 600-01.
As in Webster, the overall structure of 5 U.S.C. § 301 and
33 C.F.R. § 211 reinforces our conclusion. In addition to the
language already cited, other language in Section 211 "exudes"
discretion. For example, Section 211 authorizes the Secretary of
the Army to issue leases "whenever he shall deem it to be
advantageous to the Government." 33 C.F.R. 211.6(a)(1). The
Secretary may grant an easement upon a finding that it is not
incompatible with the public interest "and under such terms and
conditions as are deemed advisable by him." Id. 211.6(b)(1)(i)
and (iii). Further, because § 211 applies only to property
interests owned by the government, the need for judicial review
of decisions pursuant thereto is not compelling. In this case, a
public interest determination was obviously made with respect to
this property in 1941 when the United States obtained the
perpetual easement to protect the public against flooding under
the authority of national flood control legislation. We
therefore agree with the district court’s decision that it lacked
jurisdiction to review the substance of the Corps’ decision under
the APA. In addition, while a claim that the Corps failed to
follow applicable regulations would be reviewable, as noted
above, appellants rely on procedures that are not applicable to
the conduct at issue.
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B. Constitutional Claims
The Ellisons also challenge the trial court’s finding that
there was no jurisdiction over their constitutional claims for
injunctive relief, that they lacked standing to assert a
constitutional claim against the Corps for damages, and that such
a claim was deficient on the merits.
The trial court held that § 701(a)(2) of the APA precluded
jurisdiction over appellants’ constitutional claims for
injunctive relief. We disagree. The United States Supreme Court
has held that even if agency action is committed to its
discretion by law, judicial review of constitutional claims is
still available unless congressional intent to preclude review is
clear. Webster, 486 U.S. at 603; see also Federal Deposit Ins.
Corp. v. Bank of Coushatta, 930 F.2d 1122, 1129-30 (5th Cir.
1991). In Webster, the statute giving the Director of the CIA
wide discretion to fire employees precluded an employee from
challenging the Director’s decision that the termination was in
the interests of the United States. However, the statute did not
preclude consideration of "colorable" constitutional claims
arising out of the actions of the Director pursuant to that
statute. 486 U.S. at 603. Likewise, although § 211 gives the
Corps wide discretion to control its property, nowhere does it
explicitly preclude constitutional claims. Thus, the district
court erred when it held that it lacked jurisdiction over the
16
Ellisons’ due process claims for injunctive relief.
The district court correctly acknowledged that it had
jurisdiction over the Ellisons’ damage claims for due process
violations under the Tucker Act, 28 U.S.C. § 1346.1 However, the
district court also found that the Ellisons lacked standing to
assert such due process rights because they never actually
applied for building permits.2 This denial of standing was
error.
To establish standing to challenge an allegedly
unconstitutional policy, as a general matter “a plaintiff must
submit to the challenged policy.” Jackson-Bey v. Hanslmaier, 115
F.3d 1091, 1096 (2d Cir. 1997). The source of this requirement
1
The Tucker Act vests federal district courts with
jurisdiction over damage "claim[s] against the United States, not
exceeding $10,000 in amount, founded either upon the Constitution
. . . or upon any express or implied contract with the United
States. . . ." 28 U.S.C. § 1346(a)(2). The district court also
found jurisdiction over appellants’ contract claims for damages
but found no claim was stated.
2
The district court misidentified the source of this
obligation as the “zone of interests” test discussed by the
Supreme Court in Lujan v. National Wildlife Federation, 497 U.S.
871, 883 (1990). In Lujan, the Court held that a plaintiff must
establish “that the injury he complains of . . . falls within the
‘zone of interests’ sought to be protected by the statutory
provision whose violation forms the legal basis for his
complaint.” Id. This test is relevant when a plaintiff sues an
agency pursuant to a statutory provision. For example, “if there
is a statute preventing widget companies from selling law books,
a law book company might sue to challenge an administrative
regulation permitting the widget company to sell law texts.”
Erwin Chemerinsky, Federal Jurisdiction, § 2.3.6 at 97 (1994).
The zone of interests test is not applied to constitutional
claims such as the Ellisons’ due process allegations. Id. at 98.
17
is the standing principle that a plaintiff “may not seek redress
for injuries done to others.” Moose Lodge No. 107 v. Irvis, 407
U.S. 163, 166 (1972). In Moose Lodge, the Supreme Court found
that an African-American who never actually applied for
membership to the Lodge lacked standing to challenge the club’s
all-white membership policy. Id. at 166-67.
This threshold requirement for standing may be excused,
however, when a plaintiff makes a “substantial showing that
application for the benefit . . . would have been futile.”
Jackson-Bey, 115 F.3d at 1096 (but rejecting futility argument on
the facts). In Moore v. U.S. Department of Agriculture, 993 F.2d
1222 (5th Cir. 1993), we recognized the futility doctrine when we
found that white farmers did not have to complete an application
to participate in a Farmers Home Administration program when the
FMHA told them that the program was closed to whites. Id. at
1222-24. See also Desert Outdoor Advertising, Inc. v. City of
Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996) (application for
sign permits would be futile when city had sued plaintiffs to
remove signs, and ordinance “flatly prohibited” the signs).
It would have been futile in this case for the Ellisons to
apply for permits because the Corps sent them a letter on October
10, 1995 specifically stating that it would not permit the
construction or placement of any structures on their land. We
will not require the Ellisons to ask the Corps for a permit to
18
build camp structures when the Corps has already made a
determination that it will not allow them. Accordingly, we hold
that the Ellisons had standing to assert their due process
claims.
While we find that appellants had standing to assert due
process claims, we agree with the district court that, in any
event, no such claim has been stated on the merits. The
appellants assert that the Corps’ failure to follow its own
procedures and its failure to honor the alleged June 1993
agreement deprived them of property without due process.
First, appellants were not deprived of any process to which
they were entitled. As explained above, the regulatory process
established under the RHA was not applicable to the Corps’
conduct here. At most, the Corps was obligated to follow
procedures under § 211.9. When Colonel Clow explained that the
“dynamic nature of the Atchafalaya Basin” could require future
modification of the Whiskey Bay Channel, he made the requisite §
211.9 determinations that the property could be “required for
public use” during the period of the contemplated grant and that
the grant could “interfere with operations of the United States.”
The alleged oral agreement also is not a basis for a due
process violation by the Corps. Appellants base their argument
on our decision in Taylor v. District Engineer, 567 F.2d 1332
(5th Cir. 1978). Taylor, however, involved regulatory activity
19
by the Corps under the RHA with regard to property owned by the
plaintiff. Taylor does not apply to the case at hand.
Moreover, the Corps followed the procedure it allegedly
agreed to in the June 30, 1993 letter. The letter indicates that
the Corps would review any permit request for “such things as
present or future Corps activities in the area” and reserved the
right to deny the application. Appellants did not establish that
the Corps committed itself to any further procedural
requirements. Thus, appellants have not shown that they were
denied any process to which they were entitled.
Further, the district court correctly found that there were
no property rights as to which the landowners were deprived when
the Corps denied permits for the structures at issue.
V. The Laviolette Appeal
The Laviolette appeal raises the issue of the extent of the
Corps’ rights under the easement. Laviolette argues that the
district erred in construing the easement as authorizing the
Corps to deny permits if the structure could interfere in any way
with potential projects that may be contemplated in the future.
The easement grants the United States the following rights:
[T]he perpetual right, power, privilege, and
easement or servitude, in, on, and to the lands
described below; of entry thereon; of enlarging
existing channels, and constructing, maintaining,
operating drainage and navigation channels and
cutoffs; improving and altering navigation and
20
flow conditions, with the privilege of excavating
any or all of the said land, and of depositing
thereon excavated or dredged material and the
water carrying same; of building, maintaining,
enlarging and removing levees or other
embankments; of constructing, maintaining and
operating of bridges and appurtenant works; of
constructing or rearranging, maintaining and
operating of highways or roads and public
utilities; of overflowing by drainage runoff, or
by flood waters of the Mississippi River and its
tributaries and outlets, and of performing and
carrying out any other work that may be necessary
and desirable in carrying out the provisions of
Public Act No. 391 - 70th Congress, entitled “An
Act for the control of floods on the Mississippi
river and its tributaries, and for other purposes
. . .
The easement explicitly reserves all rights that do not
interfere with the easement to the owners of the property, in
addition to reserving certain specific rights related to mineral
development. The grant requires, however, that if in the
exercise of any reserved rights, the owners wish to erect any
structure that “may in any way interfere” with navigation in any
channel that "may be excavated," or “with the construction,
repair and maintenance of any channels or levees or other works
to be built upon the said land,” the owners must first obtain
permission from the Chief of Engineers. The Corps explained that
the purpose of the building restriction was to minimize the risk
to human life and property in the event of flooding.
Laviolette argues that because the Corps’ stated that it had
no current plans to modify the channel, its statement that the
dynamic nature of the Atchafalaya Basin may require such action
21
in the future was an insufficient basis to deny his permit. We
disagree. We also find unpersuasive Laviolette’s argument that
his structure can be easily removed from the property on short
notice if the Corps decides to flood the area or modify the
channel.
As the district court noted, “When parties establish a
servitude by contract and that contract provides the dimensions
of the servitude, the contract governs the extent and the mode of
the use of the servitude.” Hostetler v. W. Gray & Company, Inc.,
523 So. 2d 1359, 1363 (La. App. 2d Cir. 1988).3 The language of
the easement is unambiguous. The building restriction clause
requires permission from the Corps for structures that “may in
any way interfere” with Corps projects that "may be excavated" or
are “to be built” on the encumbered property. This language does
not restrict the Corps’ rights to currently planned uses.
Moreover, the nature of the rights granted to the United
States indicates that those rights apply to future, unplanned
3
The parties assume that Louisiana law applies to
determine the scope and effect of the easement. This conclusion
is not axiomatic. For example, when the government acquires
property pursuant to a federal law that does not specify the
appropriate rule of decision, the Supreme Court has held that
federal common law applies to property disputes. United States
v. Little Lake Misere Land Co., 412 U.S. 580, 592-594 (1973).
The court may borrow state law principles to fashion the federal
common law only if the state rules are not hostile to federal
interests. Id. at 595-96; Georgia Power Co. v. 138.30 Acres of
Land, 617 F.2d 1112, 1115-18 (5th Cir. 1980). In the case at
hand, we do not find state law to be adverse to federal
interests.
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uses. For example, an explicit purpose of the easement is to
enable to Corps to provide flood control, which the Corps
explained necessarily deals with unpredictable events. If the
Corps could not prevent the building of permanent structures
except by showing a definite plan to alter the channel, the
Corps’ right to flood the property in the future would be
difficult to enforce without endangering life and property. We
therefore find that the Corps’ denial of the permit based on its
determination that the dynamic nature of the Atchafalaya Basin
"may require" modification of the channel "in the future” was
within its rights under the easement.
V. Conclusion
For the foregoing reasons, we affirm the district court’s
determination that § 701(a)(2) of the APA precludes judicial
review of the Corps’ permitting decision as arbitrary and
capricious. While we reverse to the extent the district court
found that it lacked subject matter jurisdiction over the
Ellisons’ constitutional claims and that they lacked standing to
assert such claims, we agree those claims are meritless in any
event. Finally, we affirm the district court’s grant of summary
judgment in favor of the Corps in the Laviolette case.
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