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In Lewis v. United States, 483 F.Supp.3d 382 (M.D. La. Aug. 17, 2018), the plaintiffs owned property in Livingston Parish, Louisiana and wished to install above and below ground utilities, including a water tower and water lines to serve both existing and future uses.
Summary of this case from Lafayette City-Parish Consol. v. Gov't of ST. Martin Par.Opinion
CIVIL ACTION NO. 17-1644-JWD-RLB
2018-08-16
Garry LEWIS, et al. v. UNITED STATES of America, et al.
Drake L. Lewis, Livingston, LA, Joshua Merlin Lewis, Attorney at Law, Lafayette, LA, Michael Paul Fruge', Tony Clayton, Clayton, Fruge & Ward, Port Allen, LA, for Garry Lewis, Brenda Gayle Lewis, G. Lewis Louisiana, LLC, Robert Beard, Carolyn Milton, Town of Livingston, LA. Tsuki Hoshijima, U.S. Department of Justice, Frederick Gaston Hall, Environmental Tort Litigation Section, Washington, DC, John Joseph Gaupp, United States Attorney's Office, Katherine Krupa Green, Department of Justice, Baton Rouge, LA, for United States of America, United States Army Corps of Engineers, Michael Clancy, United States Environmental Protection Agency.
Drake L. Lewis, Livingston, LA, Joshua Merlin Lewis, Attorney at Law, Lafayette, LA, Michael Paul Fruge', Tony Clayton, Clayton, Fruge & Ward, Port Allen, LA, for Garry Lewis, Brenda Gayle Lewis, G. Lewis Louisiana, LLC, Robert Beard, Carolyn Milton, Town of Livingston, LA.
Tsuki Hoshijima, U.S. Department of Justice, Frederick Gaston Hall, Environmental Tort Litigation Section, Washington, DC, John Joseph Gaupp, United States Attorney's Office, Katherine Krupa Green, Department of Justice, Baton Rouge, LA, for United States of America, United States Army Corps of Engineers, Michael Clancy, United States Environmental Protection Agency.
RULING AND ORDER
JOHN W. deGRAVELLES, JUDGE
This matter is before the Court on the Partial Motion to Dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) filed by Defendants the United States of America, the United States Army Corps of Engineers (the "Corps"), the United States Environmental Protection Agency (the "EPA"), and Colonel Michael Clancy (collectively, "Defendants"). ("Motion," Doc. 13). Plaintiffs Garry Lewis; Brenda Gayle Lewis; G. Lewis Louisiana, LLC; Robert Beard; Carolyn Milton; and the Town of Livingston, Louisiana (collectively, "Plaintiffs"), have filed an Opposition to the Motion. (Doc 16). Defendants have filed a Reply and a Notice of Supplemental Authority in further support of the Motion, (Docs. 20, 21). Oral argument is not necessary.
For reasons set forth below, the Motion is granted in part and denied in part.
I. Regulatory Framework
This case concerns certain real property in Livingston Parish, Louisiana owned by Garry and Brenda Gayle Lewis and the Corps' oversight of that land under the Clean Water Act ("CWA") and associated regulations. (Doc. 1 at 1-3).
With certain exceptions, the 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 point source," 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, 126 S.Ct. 2208, 165 L.Ed.2d 159 (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, 126 S.Ct. 2208 (" 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).
The Court notes that the Complaint frequently does not distinguish among "Plaintiffs" and one or more specific plaintiffs or among "Defendants" and one or more specific Defendants.
In November 2014, "Garry Lewis Properties" requested from the Corps a jurisdictional determination concerning the property at issue. (Doc. 1 at 6; see also Doc. 1-12). On October 5, 2015, "Plaintiffs" met with "multiple top level representatives of Defendants," who agreed to give the request "top priority." (Doc. 1 at 6; see Doc. 1-17 at 6).
On October 14, 2015, the Corps issued a preliminary jurisdictional determination stating that the property "may be" subject to the Corps' jurisdiction. (Doc. 1-22 at 18).
Later in October 2015, "Defendants" accepted a permit application concerning activities that Plaintiffs wished to conduct on the property. (See Doc. 1 at 6). It appears from attachments to the Complaint that proposed activities included the installation of "above and below ground" utilities, including a water tower and water lines to serve both existing and future uses. (See generally Doc. 1-16).
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. (Doc. 1-19; Doc. 1-20). 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[.]" (Doc. 1-19). On November 25, 2015, the EPA responded, agreeing that "it appear[ed] that" the operation did not fall within the exemption. (Doc. 1-20). The EPA's response thanked the Corps for the "opportunity to provide comments" regarding the applicability of the exemption. (Id. ).
On December 4, 2015, the Corps sent Garry Lewis a letter stating that the Corps had reason to believe that Lewis had deposited fill material into a wetland and "advis[ing]" him to cease and desist his activity "pending a resolution." (Doc. 1-14 at 3). The letter requested that Lewis respond with a "letter of comments" explaining why work was performed without a permit. (Id. ). The letter stated that the Corps would determine an appropriate course of action based upon his response and "any available information," and that potential resolutions included restoration of the affected area, issuance of an after-the-fact permit, or legal action. (Id. ). The letter further stated that, if no response was received within 30 days, the Corps would proceed with appropriate action based on the information in its files. (Id. at 4).
In February 2016, the Corps issued to Garry Lewis a cease-and-desist order for deposition of fill material into a wetland. (Id. at 2). The order "directed" Lewis not to perform any more work absent proper authorization and stated that: (1) Lewis had performed work "in waters of the United States" subject to the Corps' regulatory authority; (2) failure to abide by the cease-and-desist order would result in "appropriate legal action"; (3) judicial proceedings were "not warranted in this case at this time"; (4) acceptance of an after-the-fact permit application for the work conducted would likely not result in additional adverse impacts to wetlands; and (5) an after-the-fact permit application should be submitted within 30 days or the Corps would reconsider its decision not to seek judicial relief. (Id. ). On September 7, 2016, Garry Lewis again requested an approved jurisdictional determination "for purposes of appeal." (Doc. 1 at 7; Doc. 1-15). To date, no such determination has issued. (Doc. 1 at 7).
This suit seeks "review and final action by the Court," contending that "action delayed is action denied." (Id. ). The Complaint also alleges that silviculture uses of land are "exempted from Defendants' regulatory process" and that the land at issue is not subject to the Corps' regulatory jurisdiction. (Id. at 7-8, 19).
The Complaint contains five bolded headings that appear to constitute Plaintiffs' causes of action. (Id. at 14-19). Count I, entitled "Denial of due process," contends that Plaintiffs have the right to clean drinking water and to conduct silviculture activities and that they may not be deprived of these rights absent an administrative appeal of a jurisdictional determination and the right to a hearing. (Id. at 14). Plaintiffs also contend that Defendants are "now directing and controlling Plaintiffs' land." (Id. ).
In the Motion, Defendants enumerate these causes of action as Count I through Count V. (Doc. 13-1 at 1 n.1). The Court adopts this enumeration for convenience although, as discussed infra , the facts upon which each count is predicated and whether the counts are fully independent of each other are sometimes unclear.
Count II, "Unequal Enforcement and Biased Action of Defendants," contends that Defendants have treated an "adjacent" timber company using the same practices differently and that a "neighbor[ing]" waste management company was allowed unimpeded use of wetlands. (Id. at 15-16). Count II also contends that a Corps official has described the Corps' dealings with Garry Lewis as characterized by "mendaciousness," (see Doc. 1-24), and that Corps officials have made inconsistent statements concerning his requests, (Doc. 1 at 15).
Count III, "Estoppel," contends that Defendants should not "profit" if their delay has resulted in the encroachment of wetland plants on the property while Plaintiffs' requests were pending. (Id. at 16). Count III also contends that Lewis has relied to his detriment on Defendants' promises, representations, regulations, and policies. (Id. ). Count III also argues that Defendants should be estopped from seeking an agency remand and submitting new evidence of federal jurisdiction. (Id. ).
Count IV, "Agency Action Unlawfully or Unreasonably Delayed," states that the Corps has not complied with its own policy, published in regulatory guidance letters, of processing jurisdictional determinations "promptly," within 60 days, or with respect to "reasonable priorities." (Id. at 17). Count IV also contends that Defendants "seek to ensure that Plaintiffs will never be able to use their land" without acceding to "unconstitutional conditions." (Id. ).
Count V, "Invalid Cease and Desist," contends "[a]lternatively" that the notice of violation and cease-and-desist orders are final agency actions. (Id. at 18). Count V alleges that these documents issued while the Corps was "refusing to assert Federal regulatory jurisdiction[.]" (Id. ). Plaintiffs contend that these documents should be "set aside." (Id. ).
Plaintiffs seek declaratory and injunctive relief. (See id. at 19-20).
III. The Partial Motion to Dismiss
A. The Motion
Defendants move to dismiss this action except insofar as Count IV alleges unreasonable delay by the Corps. (Doc. 13-1 at 1-2). Defendants argue that Count I should be dismissed under Rule 12(b)(6) because it fails to adequately allege that Plaintiffs were deprived of a constitutionally protected liberty or property interest. (Id. at 8). First, Defendants contend that due process protection does not apply to the "indirect adverse effects" of governmental action, including being deprived of clean drinking water. (Id. at 8-9). Next, Defendants maintain that the Complaint does not plausibly allege a deprivation of silviculture rights: for example, the cease-and-desist order "only pertained to discharges of fill that the Corps believed (with EPA concurrence) were unauthorized because they went beyond the scope of normal silvicultural activities exempted by the CWA," while inaction on the approved jurisdictional determination and permit similarly did not prevent "normal silvicultural activities" not requiring a permit. (Id. at 10). Finally, Defendants contend that Plaintiffs have not adequately alleged a lack of procedures for the jurisdictional determination or permit. (Id. ). Particularly, Plaintiffs seek to compel action on the permit application and jurisdictional determination and, if Plaintiffs are successful, they can appeal any adverse decision. (Id. ).
Defendants contend that Count II should be dismissed under Rules 12(b)(1) and 12(b)(6) for failure to identify a cause of action, as a "freestanding accusation of ‘bias’ is not a cause of action," or a waiver of sovereign immunity in connection with any such claim. (Id. at 10-11).
Defendants argue that Count III should be dismissed under Rules 12(b)(1) and 12(b)(6) because equitable estoppel is not, in itself, "either a claim or defense"; it is "far from clear" that the Administrative Procedure Act ("APA") provides a waiver of sovereign immunity for a claim of promissory estoppel; and Plaintiffs have failed to allege the elements of a promissory estoppel claim. (Id. at 12-15).
Defendants argue that Count IV should be dismissed as to the EPA under Rule 12(b)(6) for failure to identify any administrative action by the EPA that was unlawfully withheld or unreasonably delayed. (Id. at 15-16).
Finally, Defendants argue that Count V should be dismissed under Rule 12(b)(1) for lack of a final agency action. (Id. at 16); see Qureshi v. Holder , 663 F.3d 778, 781 (5th Cir. 2011) ("Under the [APA], final agency action for which there is no other adequate remedy in a court is subject to judicial review. If there is no final agency action, a federal court lacks subject matter jurisdiction." (footnote and internal quotation marks omitted)). With respect to the EPA, Defendants argue that the sole action alleged – the provision of a "tentative" advisory opinion concerning compliance with the silviculture exemption, with no "independent legal force" – does not qualify. (Doc. 13-1 at 17-18). With respect to the Corps, Defendants argue that the cease-and-desist order was a "preliminary step" in the enforcement process with no independent legal effect of its own. (Id. at 18-20).
B. The Opposition
Plaintiffs oppose, arguing with respect to Count I that "loss of potable water and land use through government actions" is a "temporary taking of rights." (Doc. 16 at 3). Plaintiffs also contend that they have suffered financial losses due to government delay and that access to water is a "property right of use." (Id. at 3-4). Plaintiffs also argue that amendment, not dismissal, is the appropriate remedy if Defendants' arguments succeed. (Id. at 4).
With respect to Count II, Plaintiffs argue that "selective enforcement is not legal under the APA," and is "equivalent to denial of equal treatment under substantive due process of the Fifth Amendment." (Id. at 4-5). Plaintiffs argue that the Corps' bias is "aimed in particular at plaintiff Lewis for exercising his property rights and his right to petition redresses to the government." (Id. at 4). Plaintiffs also discuss the requirements applicable to certain "class of one" claims. (Id. at 5).
With respect to Count III, Plaintiffs clarify that they seek to assert equitable estoppel in this action: that is, Plaintiffs seek a declaration that regulatory jurisdiction is lacking and that Defendants cannot rely on any change in circumstances caused by their own delay in arguing that jurisdiction exists. (Id. at 5-7).
With respect to Count IV, Plaintiffs maintain that they are claiming "concerted action" by the EPA and Corps in "rescind[ing]" the silviculture exemption. (Id. at 7-8). Plaintiffs also discuss a 1989 Memorandum of Agreement between the Corps and the EPA under which the EPA may finally determine certain regulatory issues. (Id. at 8).
Finally, as to Count V, Plaintiffs observe that there is no bar to pre-enforcement judicial review of a "compliance order" under the CWA and that the cease-and-desist order constitutes a final order under applicable law. (Id. at 9).
C. Additional Filings
In reply, Defendants generally reiterate arguments previously made. (Doc. 20 at 1-8). Defendants also contend that the Complaint fails to mention or provide support for many of the arguments in Plaintiff's Opposition, including that the Corps has conducted a temporary regulatory taking, (id. at 2), that Plaintiff has stated an equal protection or substantive due process claim, (id. at 3, 4 n.2), or that this case is a "special" case or matter in which the EPA may issue "final determination[s]," (id. at 7 n.6). They further maintain that Plaintiffs have failed to state a "class of one" claim and that the Declaratory Judgment Act does not create a federal cause of action. (Id. at 3-4). Defendants have also provided a Notice of Supplemental Authority directing the Court to a March 14, 2018 order in Lewis v. United States , No. 17-cv-632-BAJ-EWD (M.D. La.). (Doc. 21 at 1).
IV. Legal Standards
A. Rule 12(b)(1) Standard
Concerning the standard for Rule 12(b)(1) motions, the Fifth Circuit has explained:
Motions filed under Rule 12(b)(1) ... 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)....
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, Miss. , 574 U.S. 10, 135 S. Ct. 346, 190 L.Ed.2d 309 (2014), 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,’ Fed. R. Civ. P. 8(a)(2) ; they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted." 135 S.Ct. at 346–47 (citation omitted).
Interpreting Rule 8(a), the Fifth Circuit 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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (emphasis in Lormand )).
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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (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. , No. 10-00177, 2011 WL 938785, at *3 (W.D. La. Feb. 9, 2011) (citation omitted).
More recently, in Thompson v. City of Waco, Tex. , 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 state 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).
V. Analysis
A. Count I
Count I, "Denial of due process," contends that Plaintiffs have the right to clean drinking water and to conduct silviculture activities and that they may not be deprived of these rights absent procedural protections. (Doc. 1 at 14). With respect to Plaintiffs' alleged interest in both "clean drinking water" and "silvicultural rights," Defendants concede for the sake of argument that these are property rights that may, in some circumstances, be eligible for due process protection. (Doc. 13-1 at 9). Rather, Defendants contend first that any deprivation of the "right to clean drinking water" was at most an indirect adverse effect of governmental action. (Id. (citing O'Bannon v. Town Court Nursing Ctr. , 447 U.S. 773, 789, 100 S.Ct. 2467, 65 L.Ed.2d 506 (1980) ). Second, Defendants contend that their actions did not deprive Plaintiffs of the right to engage in silviculture activities falling within the scope of the exemption; rather, the cease-and-desist order pertained only to activities beyond the scope of the exemption. (Id. ).
The Court agrees with Defendants concerning Plaintiffs' right to "clean drinking water." It is true that the property interests protected by procedural due process "extend well beyond actual ownership of real estate, chattels, or money" and are "varied and, as often as not, intangible, relating to the whole domain of social and economic fact." Town of Castle Rock, Colo. v. Gonzales , 545 U.S. 748, 789, 125 S.Ct. 2796, 162 L.Ed.2d 658 (2005) ; see also Perry v. Sindermann , 408 U.S. 593, 601, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) ("[P]roperty interests subject to procedural due process protection are not limited by a few rigid, technical forms. Rather, ‘property’ denotes a broad range of interests that are secured by ‘existing rules or understandings.’ " (citing Bd. of Regents of State Colleges v. Roth , 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) ); cf. Duval Ranching Co. v. Glickman , 965 F. Supp. 1427, 1440 (D. Nev. 1997) (in evaluating standing, court ruled that "interference with water rights and rights of way," including "the flow of pure water to Plaintiffs' ranches[,]" was "plainly an invasion of a legally protected interest"). However, to have a property interest in a benefit, a person must have a "legitimate claim of entitlement" to it, not merely an "abstract need or desire for it" or "a unilateral expectation of it." Roth , 408 U.S. at 577, 92 S.Ct. 2701.
Here, the right alleged is the right to "clean drinking water," and Plaintiffs' Opposition cites cases generally concerning this right. However, the right most directly at issue and clearly embrangled in the Corps' regulatory process might be better characterized as the right to the construction of a new water tower and utility line project to provide access to water where water was previously unavailable. Plaintiffs have not pled any facts or provided the Court with law suggesting a "rule or understanding" giving rise to due process protection for that right. Otherwise, Defendants are correct that any denial of the right to "clean drinking water" is an incidental, indirect effect of failure to approve the completion of Plaintiffs' proposed project, and such a right is not subject to procedural due process protection.
The Court disagrees with Defendants concerning Plaintiffs' silviculture rights, however. Again, Defendants do not dispute that silviculture rights might be eligible for due process protection, but rather contend that Defendants did not interfere with Plaintiffs' ability to engage in "normal silvicultural activities" falling within the scope of the exemption. However, a central issue in this case is whether the silviculture exemption was properly and clearly applied, and to determine that none of Defendants' actions deprived Plaintiffs of or even implicated any protected right to conduct silviculture activities would be to prejudge this case. The Court cannot conclude that Plaintiffs have failed to state a plausible claim under the standards applicable at this stage. See Lormand , 565 F.3d at 257.
The Complaint also alleges inadequate process, claiming that Plaintiffs were denied an appeal from any jurisdictional determination and a neutral and unbiased hearing prior to the "deprivation of rights." (Doc. 1 at 14). Defendants argue that these allegations are inadequate, observing that Plaintiffs seek in Count IV to "compel action on an approved JD and permit application" and Plaintiffs can seek an administrative appeal and ultimately judicial review of any jurisdictional determination or permit application. (Doc. 13-1 at 10). This seems to suggest that, although the legal theories underlying Count I and Count IV seem to be different, the counts may ultimately rise and fall together. The Court does not find this to be grounds for dismissal of Count I, however. As Defendants themselves claim, review of a jurisdictional determination or decision on a permit application are "meaningful safeguards of any risk of erroneous deprivation of any protected interest," (Doc. 13-1 at 10), but the Complaint alleges these "meaningful safeguards" are currently unavailable due to Defendants' delay. The Complaint's allegations of inadequate process are sufficient.
Defendants are correct, however, that if Plaintiffs intend to allege a "temporary regulatory taking," that theory is not clearly raised in Count I, nor is a distinct "count" raising that theory and addressing facts in support of it included in the Complaint. The Court is disinclined to search through the Complaint to see if Plaintiffs have eked out claims beyond those identified with at least some specificity. See United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991) ("Judges are not like pigs, hunting for truffles buried in briefs."). If they desire, Plaintiffs may address this issue in any Amended Complaint. (See infra ).
B. Count II
Count II, "Unequal Enforcement and Biased Action of Defendants," claims that the Corps is biased against Plaintiffs, failed to "provide the same enforcement and requirements equally to Plaintiffs as an adjacent timber company[ ] using the same practices," and allowed "[n]eighbor" and "waste manager" Pot of Gold unimpeded use of "identified wetlands on adjacent property" for a waste site without a permit, cease-and-desist order, or notice of violation. (Doc. 1 at 15-16). Defendants argue that Count II fails to identify a cognizable cause of action or waiver of sovereign immunity. (Doc. 13-1 at 10-11). Plaintiffs respond that Count II is a "denial of substantive due process" claim under the APA and CWA, citing a "class of one" "state equal protection and [ 42 U.S.C.] § 1983 case." (Doc. 16 at 4-5). In reply, Defendants note the unclear legal basis for Plaintiffs' claims but argue that, in any event, Plaintiffs fail to state a claim. (Doc. 20 at 3-4 & n.2).
The Court generally agrees with Defendants. The legal basis for Count II is not described in the Complaint, and Plaintiff's Opposition only muddies the waters by characterizing Count II as alleging "denial of substantive due process under both the APA and CWA," relying principally on an equal protection case under § 1983, and arguing that "[u]nequal enforcement alleged is equivalent to denial of equal treatment under substantive due process of the Fifth Amendment." (Doc. 16 at 4-5). Additionally, a viable substantive due process claim requires conduct that "shocks the conscience." See United States v. Salerno , 481 U.S. 739, 746, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) ; see also Cty. of Sacramento v. Lewis , 523 U.S. 833, 846, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998) (Fourteenth Amendment's analogous substantive due process clause prohibits only "the most egregious official conduct," i.e. , that which "shocks the conscience" or violates the "decencies of civilized conduct"). A class-of-one equal protection claim requires a plaintiff to show that he has been intentionally treated differently from others similarly situated and there is "no rational basis" for the difference in treatment. Integrity Collision Ctr. v. City of Fulshear , 837 F.3d 581, 586 (5th Cir. 2016). Such a claim requires the existence of a "clear standard against which departures, even for a single plaintiff, could be readily assessed." See id. at 587. Plaintiffs' allegations in support of either type of claim are generally conclusory and insufficient to meet these standards. Therefore, Count II must be dismissed.
C. Count III
Count III, "Estoppel," argues that Defendants should be prohibited from arguing that jurisdiction exists based on "wetland plant succession" or other changes since the initial request for a jurisdictional determination. (Doc. 1 at 16). Defendants contend that Plaintiffs have failed to identify a valid cause of action or a waiver of sovereign immunity. (Doc. 13-1 at 11-12). Plaintiffs contend that equitable estoppel is a "viable" doctrine here, as they seek a declaration concerning the Corps' right to assert regulatory jurisdiction. (Doc. 16 at 5-7). Defendants reply that the Declaratory Judgment Act does not create any new federal causes of action and that Plaintiffs have failed to allege the elements of an equitable estoppel claim. (Doc. 20 at 4-5).
The Court agrees with Defendants that "the doctrine of equitable estoppel is not, in itself, either a claim or defense," but is simply "a means of precluding a litigant from asserting an otherwise available claim or defense against a party who has detrimentally relied on that litigant's conduct." See ATC Petroleum, Inc. v. Sanders , 860 F.2d 1104, 1111 (D.C. Cir. 1988). It is also well established that the Declaratory Judgment Act does not itself give rise to any standalone causes of action. See Harris Cty. Texas v. MERSCORP Inc. , 791 F.3d 545, 552 (5th Cir. 2015). Therefore, to the extent that the Complaint asserts equitable estoppel as a standalone claim, the claim must be dismissed. Since the purpose of a motion under Federal Rule of Civil Procedure 12(b) is to test and assert defenses to "claim[s] for relief," see Fed. R. Civ. P. 12, the Court need not determine at this time whether equitable estoppel or its components may be relevant for some other purpose. D. Count IV
Count IV, "Agency Action Unlawfully or Unreasonably Delayed," challenges under the APA "Defendants’ " failure to timely process a request for an approved jurisdictional determination. (Doc. 1 at 17-18). Defendants seek dismissal as to the EPA, claiming that Plaintiffs fail to allege any unlawful delay by that Defendant. (Doc. 13-1 at 15-16). Plaintiffs contend that they allege "concerted action" by the Corps and the EPA, particularly in "rescind[ing] the silviculture exemption," and cite a Memorandum of Agreement between the Corps and the EPA which permits the EPA to finally determine certain regulatory issues. (Doc. 16 at 7-8). In reply, Defendants argue that Plaintiffs have not identified any legally required action that the EPA has failed to take and especially not any action that would warrant injunctive relief with respect to future actions by the EPA. (Doc. 20 at 5-6).
The Court agrees with Defendants. First, although Count IV mentions Defendants' alleged "control" over Plaintiffs' land, Count IV is directed principally at "Defendants’ " ongoing failure to issue a jurisdictional determination. (See Doc. 1 at 17-18). It is true that, in certain situations, the EPA makes jurisdictional determinations. See Memorandum of Agreement Between the Department of the Army and the Environmental Protection Agency Concerning the Determination of the Geographic Jurisdiction of the § 404 Program and the Application of the Exemptions under § 404(f) of the Clean Water Act (Jan. 19, 1989) ("Memorandum of Agreement"). However, the EPA does so in cases that it has designated "special cases," generally where "significant issues or technical difficulties" are anticipated or exist; the Corps does so in "routine[ ]" cases. See id.; see also Wetlands determinations—Memorandum of agreement on geographical jurisdiction, L. of Wetlands Reg. § 7:4 (2018); 33 C.F.R. §§ 325.9 ; 331.2. The Complaint does not suggest that this was such a "special case." Thus, the Complaint does not plausibly allege that the EPA has unreasonably and unlawfully delayed in issuing a jurisdictional determination that it was required to issue.
The Court takes judicial notice of the Memorandum of Agreement for purposes of the instant Motion. See Menominee Indian Tribe of Wisconsin v. U.S. Dep't of Interior , 2010 WL 4628916, at *5 (E.D. Wis. Nov. 4, 2010) (memorandum of agreement between National Indian Gaming Commission and the Department of the Interior was appropriate subject of judicial notice, as it was not "subject to reasonable dispute"); Tagupa v. McDonald , 27 Vet. App. 95, 100 (2014) (applying Federal Rule of Evidence 201(b) and determining that memorandum of agreement between the Department of the Army and the National Archives and Records Administration was appropriate subject of judicial notice).
It is unclear whether Count IV directly challenges delay associated with the permit request, siliviculture exemption, violation notice, or cease and desist order. Regardless, Plaintiffs have not described how the EPA has some ongoing responsibility with respect to these actions. Particularly, it is unclear how, after responding to the Corps that "it appear[ed] that" the logging operation did not fall within the exemption, (Doc. 1-20), the EPA nevertheless remained responsible for the permitting decision. See 33 U.S.C. § 1344(a) ; Rapanos , 547 U.S. at 723, 126 S.Ct. 2208 (Corps generally responsible for permitting decisions). The Memorandum of Agreement also contemplates certain "special 404(f) matters" in which the EPA makes final determinations of the applicability of exemptions but, similar to its treatment of "special cases," a "special 404(f) matter" is "designated," generally where "significant issues or technical difficulties are anticipated or exist." See Memorandum of Agreement. The Complaint does not suggest that this was such a matter.
Otherwise, the Court is generally left with Plaintiffs' unvarnished claims of "concerted action." (Doc. 16 at 7). As Defendants note, however, the only action that can be compelled under the APA is action legally required. See Norton v. S. Utah Wilderness All. , 542 U.S. 55, 63, 124 S.Ct. 2373, 159 L.Ed.2d 137 (2004). Plaintiffs have made an inadequate showing that the EPA delayed taking any such action or continues to do so in this case, and Count IV must accordingly be dismissed as to the EPA.
E. Count V
Count V, "Invalid Cease and Desist," "[a]lternatively" contends that the notice of violation, cease-and-desist order, or both, constitute a final, appealable agency action under the APA. (Doc. 1 at 18-19).
Preliminarily, Count V does not adequately allege final agency action by the EPA. First, Count V is directed at the notice of violation and cease-and-desist order, from which the EPA's letter was several levels removed. Second, as Defendants correctly note, the EPA's letter was framed in tentative, advisory terms concerning whether it "appear[ed]" that the logging operation qualified for the silviculture exemption, and by its terms it provided "comments" and did not determine Plaintiffs' rights. (Doc. 1-20); see also Louisiana State v. United States Army Corps of Engineers , 834 F.3d 574, 580 (5th Cir. 2016) (agency action is "final" if first, the action marked "the consummation of the agency's decisionmaking process" and was not of "a merely tentative or interlocutory nature," and second, the action was one from which rights or obligations have been determined or from which legal consequences flow); Dalton v. Specter , 511 U.S. 462, 469, 114 S.Ct. 1719, 128 L.Ed.2d 497 (1994) (final agency action lacking where reports recommended closure of certain bases but carried no "direct consequences"; reports functioned "more like a tentative recommendation than a final and binding determination"). Otherwise, as described supra , there is no action that the EPA is plausibly alleged to have taken or failed to take.
Defendants argue that dismissal of Count V is also warranted as to the Corps because the notice of violation and cease-and-desist order were not final agency actions. (Doc. 13-1 at 18-20). Defendants contend that these constituted preliminary steps in the enforcement process without independent legal effect; that is, they were intended primarily to provide notice to an alleged "ongoing violator," with the decision to "pursue an enforcement action" coming later. (Id. at 18-19). Plaintiffs disagree, relying on Sackett v. E.P.A. , 566 U.S. 120, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012), and arguing that the cease-and-desist order stops Plaintiffs from using their land and triggers obligations to restore the property, request an after-the-fact permit, or engage in "other legal action." (Doc. 16 at 9). Plaintiffs argue that the cease-and-desist order also has legal consequences of enforcement if Plaintiffs proceed with their planned property use. (Id. ). Defendants reply that Plaintiffs have failed to address the fact that the cease-and-desist order was a "preliminary step in enforcement" and that Sackett is distinguishable because the order at issue in that case could give rise to "independent civil penalties." (Doc. 20 at 7-8).
Both parties discuss Sackett. (Doc. 13-1 at 20; Doc. 16 at 9; Doc. 20 at 8). Therein, the Supreme Court ruled that an EPA compliance order was a final agency action reviewable under the APA, as the order (1) required landowners to restore their property and give the EPA access to their property and records; (2) exposed the landowners to double penalties in a future enforcement proceeding; (3) "severely limit[ed]" the landowners' ability to obtain a permit from the Corps because, once the EPA has issued a compliance order concerning property, the Corps will not process a permit application for that property unless doing so is "clearly appropriate"; and (4) contained "findings and conclusions" not subject to further formal review. 566 U.S. at 126-27, 132 S.Ct. 1367.
The Supreme Court has generally taken a "pragmatic" approach to finality. U.S. Army Corps of Engineers v. Hawkes Co. , ––– U.S. ––––, 136 S. Ct. 1807, 1815, 195 L.Ed.2d 77 (2016). For example, the Supreme Court once deemed final an order specifying which commodities the Interstate Commerce Commission believed were exempt from regulation. Id. (citing Frozen Food Express v. United States , 351 U.S. 40, 44-45, 76 S.Ct. 569, 100 L.Ed. 910 (1956) ). Although the order would have effect only when a particular enforcement action was brought against a particular carrier, the order "warn[ed] every carrier" that, without authority from the Commission, they would transport certain commodities "at the risk of incurring criminal penalties." Id. (citing Frozen Food Express , 351 U.S. at 44, 76 S.Ct. 569 ).
More recently, the Supreme Court has ruled that the Corps' jurisdictional determination has legal consequences because a "negative" jurisdictional determination (i.e. , that property does not contain jurisdictional waters) "narrows the field of potential plaintiffs and limits the potential liability a landowner facts for discharging pollutants without a permit." Id. at 1814. Thus, an "affirmative" jurisdictional determination has inverse legal consequences, including the denial of that "safe harbor." Id.
Similarly, the Fifth Circuit has opined that agency action may mark the "consummation of the agency's decisionmaking process" if the agency has "asserted its final position on the factual circumstances" underpinning the agency action. Louisiana State , 834 F.3d at 581. The Fifth Circuit has also ruled that "legal consequences" exist where the challenged action commits an agency to a view of the law that, in turn, forces the plaintiff either to alter its conduct or expose itself to potential liability. Id.
Here, Plaintiffs have adequately alleged that the cease-and-desist order constituted a final agency action, particularly given the lenient standards generally applicable at this stage. See Lane v. Halliburton , 529 F.3d 548, 557 (5th Cir. 2008) (in reviewing dismissal under Rule 12(b)(1), relevant question was whether, viewing allegations "in the most favorable light," plaintiffs could prove "any plausible set of facts" permitting recovery without compelling the court to answer nonjusticiable political question). Plaintiffs adequately allege that the cease-and-desist order had legal consequences, U.S. Army Corps of Engineers , 136 S. Ct. at 1814 ; Frozen Food Express , 351 U.S. at 44-45, 76 S.Ct. 569, and constituted the "consummation of the agency's decisionmaking process" with respect to several definite factual and legal conclusions that Plaintiffs now wish to challenge, Louisiana State , 834 F.3d at 580-81. The cease-and-desist order "directed" Garry Lewis to cease unauthorized work on his property or face legal action. (Doc. 1-14 at 2). It specifically asserted regulatory authority over the property on which the offending work had been performed. (Id. ). It further contended that the work violated the CWA and ordered Garry Lewis to submit an after-the-fact permit application or face "reconsideration" of the decision not to seek judicial relief. (Id. ). Aside from a general invitation to call a telephone number if Garry Lewis "wish[ed] to discuss this matter further" or ask "questions concerning wetlands and the permitting process," the cease-and-desist order did not suggest that it was in any way open to revision. (Id. ). Similarly, the cease-and-desist order did not state how its findings and conclusions (e.g. , that regulatory jurisdiction existed and that some activities on the land required a permit) might be challenged without violating its terms. (Id. ).
Defendants argue that the cease-and-desist order was merely a "preliminary step" in enforcement designed to "provide notice to an alleged ongoing violator." (Doc. 13-1 at 18). Whatever the "purpose" of a cease-and-desist order may be, however, the one used in this case went far beyond "notification." Perhaps notably, on the next page of their Motion papers, Defendants characterize the cease-and-desist order as "initiat[ing] communication and giv[ing] an alleged violator an opportunity to come into compliance [.]" (Doc. 13-1 at 19 (emphasis added)). That is, while the cease-and-desist order may have left open certain remedial questions, it also strongly suggested that the Corps had "asserted its final position" on several facts underpinning its actions, including the presence of jurisdiction and the existence of a violation. Louisiana State , 834 F.3d at 581.
Sackett does not compel a different result. Although Defendants are correct that, in Sackett , the agency action at issue could result in separate civil penalties, that was only one of several legal consequences or rights and obligations arising from the agency action. See 566 U.S. at 126, 132 S.Ct. 1367.
The Court further notes that, in this case, the Corps had already provided Garry Lewis "notice" of possible violations: its December 2015 letter stated that the Corps had reason to believe that Lewis had deposited fill material into a wetland, "advise[d]" him to cease and desist his activity "pending a resolution," requested a "letter of comments" explaining why work was performed without a permit, and stated that an appropriate course of action was still to be determined. (Doc. 1-14 at 3-4).
Therefore, under the applicable standards, Plaintiffs have made a plausible showing of the existence of a final order. See Lane , 529 F.3d at 557. The Motion to dismiss Count V will be denied as to the Corps.
The portion of the Complaint describing Count V suggests that Count V ties into the "unreasonable" delay at issue in Count IV. (See Doc. 1 at 18 ("Defendants, in issuing the cease and desist order and notice of violation ..., did so while refusing to assert [f]ederal regulatory jurisdiction as part of a Milton Lane jurisdictional determination pending [Garry Lewis's] request. Now that request exceeds three years of age. The Defendant's cease and desist order and notice of violation are enforced now approaching two years without the necessary showing of [f]ederal jurisdiction.")). Certainly, the lack of an approved jurisdictional determination appealable through normal channels lends additional support to the proposition that the cease-and-desist order incorporating that determination might fairly be considered the "consummation of the agency's decisionmaking process" concerning jurisdiction. Louisiana State , 834 F.3d at 581. However, it does somewhat cloud the issue of the extent to which Count V is truly an "alternative[ ]," (Doc. 1 at 18), to the other counts. If they desire, Plaintiffs may clarify this issue in any Amended Complaint. VI. Conclusion
Accordingly, IT IS ORDERED that the Motion, (Doc. 13), is GRANTED IN PART and DENIED IN PART . Particularly, the Motion is GRANTED insofar as it seeks dismissal of Counts II and III and dismissal of Counts IV and V as to the EPA. The Motion is DENIED with respect to the dismissal of Count I and the dismissal of Count V as to the Corps.
In accordance with "wise judicial practice," 5B Charles A. Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1357 (3d ed. 2016), the Court grants leave to amend with respect to all claims raised in the Complaint. Within 21 days of the date of this Ruling and Order, Plaintiffs shall file an Amended Complaint consistent with the findings and conclusions herein. The Amended Complaint shall be complete in itself and shall not refer back to or incorporate by reference any prior filing. Failure to timely file an Amended Complaint may result in the dismissal of this action.