Lewis v. United States ( 2023 )

Case: 21-30163 Document: 00517005621 Page: 1 Date Filed: 12/18/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
_____________ FILED
December 18, 2023
No. 21-30163 Lyle W. Cayce
_____________ Clerk
Garry L. Lewis; G. Lewis-Louisiana, L.L.C.,
Plaintiffs—Appellants,
versus
United States of America; Michael C. Wehr, Major General;
Michael Clancy, Colonel; United States Army Corps of
Engineers,
Defendants—Appellees,
consolidated with
_____________
No. 23-30387
_____________
Garry L. Lewis; G. Lewis-Louisiana, L.L.C.,
Plaintiffs—Appellants,
versus
United States of America; United States Army Corps of
Engineers; Stephen Murphy, Colonel; Diana Holland, Major
General,
Defendants—Appellees.
Case: 21-30163 Document: 00517005621 Page: 2 Date Filed: 12/18/2023
No. 21-30163
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______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC Nos. 2:18-CV-1838, 2:21-CV-937
______________________________
Before Jones, Higginson, and Duncan, Circuit Judges.
Edith H. Jones, Circuit Judge:
Appellants are landowners (referenced together as “Lewis”) caught
in the coils of the United States Army Corps of Engineers’ (USACE’s)
assertions of Clean Water Act jurisdiction over “wetlands” on their inland
Louisiana property for going on ten years. During this period, two Supreme
Court cases, three Approved Jurisdictional Determinations (AJDs), two
federal court cases resulting in two remand orders, and two appeals to this
court have transpired. Enough is enough.
We hold that the Supreme Court’s recent decision in Sackett v. EPA
controls the undisputed facts here and mandates that Appellants’ property
lacks “wetlands [that] have ‘a continuous surface connection to bodies that
are “waters of the United States” in their own right, so that there is no clear
demarcation between “waters” and wetlands.’” 143 S. Ct. 1322, 1340
(2023) (quoting Rapanos v. United States, 547 U.S. 715, 742, 126 S. Ct. 2208,
2226 (2006) (plurality opinion of Scalia, J.)). Consequently, the property at
issue is not subject to federal jurisdiction.
I. Background
Appellants own substantial real property in Livingston Parish,
Louisiana, that has been used primarily as a pine timber plantation for
decades. The land at issue here comprises two roughly twenty-acre tracts of
“grass-covered, majority dry fields, with gravel logging and timber roads on
two sides of each tract.” Hoping to develop the property, in August 2013,
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Lewis first sought a USACE AJD, 33 C.F.R. § 320.1(a)(2), (6),1 which went
unanswered until his formal request two years later. After seven site visits,
USACE concluded in 2016 that 22% of one tract and 38% of the other
contained wetlands subject to CWA jurisdiction.2 With these vague
percentage designations, the entire forty acres was practically denominated
federal wetlands that require federal permits before further development can
occur. See 33 U.S.C. § 1344(a). Lewis appealed to the USACE division
commander and secured administrative reconsideration. The result was
another, substantially unchanged AJD in November 2017.
Lewis filed suit in federal court for review of the 2017 AJD, alleging
inter alia that the Corps’ action was arbitrary and capricious under the APA.
The district court carefully and extensively reviewed the record, and it found
the administrative record insufficient to support the conclusion that wetlands
on the property met the “adjacency” test or had a “significant nexus” to
traditional navigable waters. The court set aside the 2017 AJD and remanded
to USACE for further review.
On remand, USACE revised the data and applied a then-recently
issued regulation (the 2020 Navigable Waters Protection Rule3). The
remand resulted in a 2020 AJD that acknowledged the absence of
jurisdictional wetlands on the western 20-acre tract, but nearly doubled the
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1
An AJD is “a Corps document stating the presence or absence of waters of the
United States on a parcel or a written statement and map identifying the limits of waters of
the United States on a parcel.” 33 C.F.R. § 331.2.
2
As an aside, during a historic 500-year flood in 2016, this property was unscathed
although 80% of the Livingston Parish homes were flooded. Despite his property’s
remaining high and dry, and despite the property’s being positively evaluated for disaster
relief by FEMA, USACE refused to process the permits necessary for Lewis to assist the
community by building affordable housing for flood victims.
3
33 C.F.R. § 328.3(c)(1)(iv) (2020).
3
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alleged wetlands to over 16 acres, or 80%, of the eastern tract. The Corps’
new conclusion derived from connecting (a) roadside ditches and (b) a
culvert to (c) an unnamed non-“relatively permanent water” tributary, then
to (d) Colyell Creek (a “relatively permanent water”) several miles away,
and ultimately to (e) the traditionally navigable waterway of Colyell Bay ten
to fifteen miles from the Lewis property. Following remand, the district
court entered a final judgment and rejected Lewis’s request for the court to
review the revised 2020 AJD.
Lewis appealed the court’s judgment on the 2017 AJD. We stayed the
appeal, however, pending the Supreme Court’s decision in Sackett, on which
cert. had recently been granted.
In the meantime, Lewis pursued a separate district court case
challenging the 2020 AJD. In March 2022, Lewis moved for summary
judgment. The USACE responded by offering to withdraw the 2020 AJD
and reconsider the jurisdictional issue “promptly” on remand. While
Lewis’s motion for summary judgment and USACE’s motion for voluntary
remand were pending, USACE notified Lewis that it had withdrawn the 2020
AJD. The district court granted USACE’s motion for voluntary remand and
dismissed Lewis’s summary judgment motion as moot. Lewis appealed. The
appeals were consolidated in this court. We heard oral argument after
receiving renewed briefing in the wake of Sackett.
Lewis’s position on appeal is simple: he wishes to be set free of further
intercourse with the USACE because under no interpretation of the
administrative facts, as explained by Sackett, can his property be regulated as
“wetlands” subject to the CWA. The government acknowledges it can no
longer defend the merits of the 2017 AJD. The government asserts that the
appeal of the 2020 AJD is moot since it strategically withdrew that AJD after
Lewis filed his second lawsuit. Alternatively, the government again seeks
4
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remand to reevaluate the facts and study Lewis’s property yet again. We find
neither government argument, mootness or remand, persuasive.
II. Discussion
The Clean Water Act protects “navigable waters,” which the statute
defines as “the waters of the United States, including the territorial seas.”
33 U.S.C. § 1362(7). Before Sackett, the Supreme Court’s exegesis of the
statutory term “waters of the United States” had been far from clear. The
Rapanos case yielded a four-Justice plurality opinion that narrowly construed
the regulation of “wetlands” under the overall CWA mantle (the “adjacency
test”), 547 U.S. at 741–42, 126 S. Ct. at 2226–27 (plurality opinion), but
Justice Kennedy’s separate concurrence required only a “significant nexus”
between a property’s “wetland” and adjacent “relatively permanent”
waterways, id. at 779–80, 126 S. Ct. at 2247–48 (Kennedy, J., concurring in
judgment). Rapanos’s inconclusive reasoning formed the background of the
2016 and 2017 AJDs. Regulatory ambiguity was heightened by subsequent
administrative rulings, guidance, and court opinions.
Fortunately, we need not recount this history in detail. Sackett has
cleared the air as concerns this case both legally and factually. In Sackett, the
Supreme Court held that the Clean Water Act “extends to only those
wetlands with a continuous surface connection to bodies that are waters of
the United States in their own right, so that they are indistinguishable from
those waters.” 143 S. Ct. at 1344 (internal quotation marks omitted)
(quoting Rapanos, 547 U.S. at 742, 755, 126 S. Ct. at 2226, 2234). Further,
the Court explained, this requires the party asserting jurisdiction over
adjacent wetlands to establish “first, that the adjacent [body of water
constitutes] . . . ‘water[s] of the United States,’ (i.e., a relatively permanent
body of water connected to traditional interstate navigable waters); and
second, that the wetland has a continuous surface connection with that water,
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making it difficult to determine where the ‘water’ ends and the ‘wetland’
begins.” Id. at 1341 (alterations in original) (quoting Rapanos, 547 U.S. at
742, 126 S. Ct. at 2227). This formulation represents the Sackett
“adjacency” test. From a legal standpoint, this test significantly tightens the
definition of federally regulable wetlands, as compared with the “significant
nexus” test and interim administrative regulations.
Because the district court found the 2017 AJD was insufficiently
supported under either the Rapanos “adjacency” test or the “significant
nexus” test, it follows that that AJD cannot generate regulation under the
Sackett adjacency test. The 2020 AJD fares no better factually under the
district court’s thorough analysis. Indeed, the Corps cannot escape its
concession during the initial litigation that the Lewis tracts cannot satisfy the
“adjacency test.” As photographs of the property depict, there is no
“continuous surface connection” between any plausible wetlands on the
Lewis tracts and a “relatively permanent body of water connected to
traditional interstate navigable waters.” Id. Recall that the nearest relatively
permanent body of water is removed miles away from the Lewis property by
roadside ditches, a culvert, and a non-relatively permanent tributary. In sum,
it is not difficult to determine where the “water” ends and any “wetlands”
on Lewis’s property begin—there is simply no connection whatsoever.
There is no factual basis as a matter of law for federal Clean Water Act
regulation of these tracts. The district court erred in denying Lewis’s motion
for summary judgment.
Regarding mootness, the government’s attempt to withdraw the 2020
AJD unilaterally and avoid judicial review fails for two reasons. First, it runs
afoul of the “voluntary cessation” exception to mootness. The Supreme
Court recently held that “voluntary cessation does not moot a case” unless
it is “absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” West Virginia v. EPA, 142 S. Ct. 2587,
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2607 (2022) (quoting Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No.
1, 551 U.S. 701, 719, 127 S. Ct. 2738, 2751 (2007)). There is no basis for a
reasonable expectation of non-recurrence in this matter. USACE clings to
the contention that on remand, after conducting yet further investigation,
and despite its previous judicial admission to the contrary, it may somehow
“connect” Lewis’s wetlands to a relatively permanent waterway, as required
by Sackett. The agency does not commit to issuing an AJD that extricates the
Lewis property from regulated wetlands status, but we conclude that is the
only result consistent with Sackett and on the factual findings of the
district court.
Second, holding that USACE may “withdraw” an AJD, a “final
agency action,” and thereby avoid mootness, is impermissible for another
reason. The Supreme Court holds that an AJD is a final, reviewable agency
action. U.S. Army Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 598–99,
136 S. Ct. 1807, 1814 (2016). In reaching that conclusion, the Court noted
the significant legal consequences for a property owner of either a grant or a
denial of an AJD. A negative AJD precludes enforcement actions by either
USACE or EPA for five years, see 33 U.S.C. § 1319, 33 C.F.R. pt. 331,
App. C, creating to that extent a safe harbor for the landowner. An
affirmative AJD, on the other hand, denies the safe harbor and requires a
permit for the landowner to proceed in development. And the permitting
process can be “arduous, expensive, and long.” Hawkes, 578 U.S. at 601,
136 S. Ct. at 1815. But so long as there is an AJD, or its denial, judicial review
is required by Hawkes. Here, the USACE has kept Lewis in regulatory no-
man’s-land for over ten years by repeatedly reaching uncertain and
unsustainable jurisdictional determinations. Withdrawing the AJD deprived
Lewis of a partial safe harbor as to the western tract and portions of the
eastern tract. For this court to hold the issue of Clean Water Act jurisdiction
mooted by the agency’s unilateral withdrawal of an AJD places finality in the
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agency’s sole control and would essentially repudiate Hawkes.4 As Lewis
properly observes, USACE could create an “endless loop” of financially
onerous regulatory activity by thwarting finality in this way. This appeal is
not moot.
Finally, remand is not appropriate to allow USACE another attempt
to assert federal authority over the Lewis property. The “ordinary remand
rule”5 does not apply where “‘[t]here is not the slightest uncertainty as to
the outcome’ of the agency’s proceedings on remand.” Calcutt, 143 S. Ct. at
1321 (quoting NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n.6, 89 S. Ct.
1426, 1430 n.6 (1969) (plurality opinion)).6 In its 2020 ruling, to repeat, the
district court found, and USACE conceded, that the Rapanos adjacency test
could not be met on the undisputed facts that the court thoroughly described.
Those facts are incompatible with finding adjacency under Sackett, and they
are indispensable to the agency’s assertion of jurisdiction. Where the
governing law is now clear, and the relevant facts cannot be disputed, the only
possible conclusion is that the Lewis tracts are not wetlands that are adjacent
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4
Indeed, USACE intransigently adopts the same arguments that the Supreme
Court squarely rejected in Hawkes, when, in defending mootness here, it contends that
Lewis may eventually seek judicial review—for a third time—either by requesting another
AJD, or by contesting an enforcement action. See Hawkes, 578 U.S. at 601–02, 136 S. Ct.
at 1816.
5
See Calcutt v. FDIC, 143 S. Ct. 1317, 1320–21 (2023) (“It is a well-established
maxim of administrative law that ‘[i]f the record before the agency does not support the
agency action, [or] if the agency has not considered all relevant factors, . . . the proper
course, except in rare circumstances, is to remand to the agency for additional investigation
or explanation.” (alterations in original) (quoting Fla. Power & Light Co. v. Lorion, 470 U.S.
729, 744, 106 S. Ct. 1598, 1607 (1985))).
6
Nor may remand be predicated on the recent regulatory attempt to craft a new
rule compliant with Sackett. As USACE acknowledged, that Rule, 88 Fed. Reg. 61964,
became effective on September 8, 2023, only in states where a previous January 2023 Rule
had not been enjoined. Louisiana is not among those states.
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to any relatively permanent jurisdictional water. See Sackett, 143 S. Ct. at
1336.7 And in Sackett itself, the Supreme Court did not give the EPA another
opportunity, on remand, to assert jurisdiction over the “wetlands” at issue
there. See id. at 1344; see also Sackett v. United States, No. 2:08-cv-00185,
Dkts. 139, 140 (D. Idaho Oct. 5, 2023) (entering judgment on remand “in
favor of the Sacketts because any wetlands on the Sacketts’ property are not
‘waters of the United States’”).
For these reasons, we VACATE the judgment of the district court and
REMAND with instructions to enter judgment in favor of Lewis that the
tracts in question are not “waters of the United States” under Sackett.
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7
Lewis describes ongoing travails with USACE over other tracts within the
Livingston Parish property, which suggest the possibility of future litigation. In light of the
agency’s utter unwillingness to concede its lack of regulatory jurisdiction in this case
following Sackett, we admonish it not to pursue actions against Lewis that could be
challenged under the Equal Access to Justice Act’s bad-faith provision. 28 U.S.C.
§ 2412(b); see Gate Guard Servs., L.P. v. Perez, 792 F.3d 554, 564 (5th Cir. 2015) (imposing
attorney fees for bad faith of government agency).
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Stephen A. Higginson, Circuit Judge, concurring:
I write separately because I would rest our mootness analysis solely on
voluntary cessation rather than also relying on U.S. Army Corps of Engineers
v. Hawkes Co., 578 U.S. 590 (2016). See Op. at 6-8. Hawkes held that an
approved jurisdictional determination (AJD) satisfies the requirements for
judicial review under the Administrative Procedure Act (APA). 578 U.S. at
597. That is, an AJD is a “final agency action for which there is no other
adequate remedy in court.” 5 U.S.C. § 704. That parties have a right to
judicial review of AJDs under the APA does not resolve whether a challenge
to an AJD is mooted by the AJD’s withdrawal. Finality goes to whether
review is permissible now under the APA, mootness goes to whether a court
can grant effectual relief. Imagining the justiciability hurdle is standing
makes the mismatch clearer: if Lewis had no interest in the property, his
standing problem would not be resolved by the fact that an AJD is a final
agency action reviewable under the APA. I agree with the court’s discussion
of the legal consequences that AJDs carry, and that the withdrawn AJD
deprived Lewis of partial safe harbor, but I do not agree that the Hawkes
finality holding goes to mootness here. See Op. at 7-8.
I also do not join the court’s suggestion, in the final footnote, that
USACE might be subject to bad faith sanctions in litigation not before us and,
indeed, not yet even undertaken.
10