White Oak Realty, LLC et al v. United States Army Corps of Engineers et al
ORDER AND REASONS re 100 , 102 Motions for Summary Judgment. Summary judgment is granted in favor of Defendants. Plaintiffs' APA and per se takings claims are dismissed with prejudice. The only remaining claim is Plaintiffs' regulatory takings claim. Signed by Judge Jane Triche Milazzo. (ecm)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WHITE OAK REALTY, LLC
UNITED STATES ARMY CORP
OF ENGINEERS, ET AL.
ORDER AND REASONS
Before the Court are Cross-Motions for Summary Judgment (Docs. 100,
102). For the following reasons, summary judgment is granted in favor of
This is a civil action for declaratory and injunctive relief. The plaintiffs
are White Oak Realty, LLC and Citrus Realty, LLC. The defendants are the
United States Corps of Engineers (the “Corps”) and various Corps employees.
The dispute involves mitigation requirements imposed by the Corps on a tract
of land in Southeast Louisiana (“Idlewood Stage 2”), jointly owned by Plaintiffs.
In response to the devastation caused by Hurricanes Katrina and Rita,
Congress authorized the Corps to undertake a series of projects collectively
known as the Hurricane and Storm Damage Risk Reduction System
(“HSDRRS”). One of these projects involves the use of soil and clay (“borrow
material”) to reinforce levees and floodwalls in the Gulf South. In order to
respond to the unprecedented amount of borrow material needed for this
project, the Corps instituted the contractor-furnished borrow program. The
contractor-furnished borrow program allows landowners to have their land
pre-qualified as a suitable source for borrow material based on certain
requirements. 1 These government-approved properties are then placed on a
list for selection as supply sources by contractors working on the levee project.
Contractors may then select a borrow supplier from that list, and the borrow
is excavated for use on the Corps’s projects.
At some point in 2010, Plaintiffs discovered the presence of borrow
material on their property.
They subsequently filed a “suitability
determination” with the Corps to confirm the borrow material could be used in
Some of the property (Idlewild Stage 1) was quickly
qualified and clay mining began. On other portions (Idlewild Stages 2 and 3),
the Corps approved the land’s use for borrow material but found that the
excavation of borrow material would cause “unavoidable impacts” to the
bottomland hardwood (“BLH”) forests on the property, and therefore
mitigation would be required. In addition, the portions of the land that were
wetlands were excluded from excavation. Plaintiffs, therefore, sought to mine
clay only from the uplands portions of Idlewild Stage 2 and that area was later
cleared of the BLH forest.
In a letter dated November 4, 2010, the Corps notified Plaintiffs that
Idlewood Stage 2 “appears to be acceptable for use as a source” of borrow
material. The letter confirmed the preliminary report’s determination that
Doc. 115-4, p. 12.
excavation would harm the environment.
The letter required “proof of
mitigation to the Corps . . . prior to excavation.” The Corps issued a similar
letter on April 14, 2011, reaffirming the requirement that the impacts to the
BLH forests on the land be mitigated. The letter informed Plaintiffs that their
“compensatory mitigation requirements may be met” by obtaining credits from
select mitigation banks.
Plaintiffs subsequently hired Mitigation Strategies, LLC (“Mitigation
Strategies”) hoping to convince the Corps of the “legal and factual errors
underlying [its] mitigation requirements.” Mitigation Strategies argued to the
Corps on numerous occasions that mitigation was neither necessary nor
appropriate under the law. In the alternative, if mitigation was required,
Mitigation Strategies argued the law required in-kind mitigation, rather than
the purchase of credits from mitigation banks.
The Corps disagreed. A February 20, 2013 letter from the District
Commander reiterated the Corps’s position that if borrow material from
Idlewood Stage 2 is used in connection with the HSDRRS project, the impacts
to the BLH forests on that land must be mitigated (the “Mitigation
Requirement”). It further confirmed the Corps’s position that such mitigation
must occur through the purchase of mitigation bank credits (the “Purchase
As a result of the Corps’s position, Plaintiffs filed this suit, arguing that
the Water Resource Development Act of 2007 (“WRDA”), 33 U.S.C. § 2201 et
seq., does not require mitigation for Idlewood Stage 2 or alternatively, that the
WRDA does not authorize the Corps to mandate the purchase of mitigation
credits as the sole form of compensatory mitigation. Plaintiffs also assert
claims under the Takings Clause of the Fifth Amendment. 2 The parties have
filed cross-motions for summary judgment on all of Plaintiffs’ claims.
“The [APA] allows a federal court to overturn an agency’s ruling only if
it is arbitrary, capricious, an abuse of discretion, not in accordance with law,
or unsupported by substantial evidence on the record taken as a whole.” 3 The
Court begins with the “presumption that the agency’s decision is valid, and the
plaintiff has the burden to overcome that presumption by showing that the
decision was erroneous.” 4 The agency’s factual findings will be upheld so long
as they are supported by substantial evidence. 5 “The agency’s legal conclusions
are reviewed de novo, except for questions of statutory interpretation, where
the court owes substantial deference to an agency’s construction of a statute
that it administers.” 6
The Court must also be mindful of the two-step process of judicial review
of agency action outlined in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc. 7 Pursuant to Chevron, a court reviewing an agency’s construction
of a statute must first ask “whether Congress has directly spoken to the precise
question at issue.” 8 If Congressional intent is clear, “that is the end of the
matter.” 9 If, however, the statute is silent or ambiguous with regard to the
specific issue, the question then becomes whether agency action is “based on a
Plaintiff’s due process claims have previously been dismissed by this Court. Doc. 142.
Buffalo Marine Servs. Inc. v. U.S., 663 F.3d 750, 753 (5th Cir. 2011).
4 Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 775 (5th Cir. 2010).
5 Buffalo Marine Servs. Inc., 663 F.3d at 753.
7 467 U.S. 837 (1984).
8 Id. at 842.
9 Id. at 843.
permissible construction of the statute.” 10 “If Congress has explicitly left a gap
for the agency to fill, there is an express delegation of authority to the agency
to elucidate a specific provision of the statute by regulation. Such legislative
regulations are given controlling weight unless they are arbitrary, capricious,
or manifestly contrary to the statute.” 11 Indeed, the Court cannot substitute
its own construction of a statutory provision for a reasonable interpretation
made by the administrator of an agency.” 12
LAW AND ANALYSIS
At the outset, Defendants argue that this Court lacks jurisdiction under
the APA to hear Plaintiffs’ claims because no final agency action has taken
place. Defendants originally propounded this argument in their Motion to
Dismiss. 13 Under a Rule 12(b)(1) standard, this Court held that the Corps’s
February 20, 2013 letter constituted a final agency action. 14 Defendants have
reurged this argument in their summary judgment motion and argue that
Plaintiffs cannot carry the burden of proving that the February 20 letter was
In order to be considered final, an agency action must (1) “mark the
consummation of the agency’s decision-making process,” and (2) “be one by
which rights or obligations have been determined, or from which legal
consequences will flow.” 15 Defendants contend that Plaintiffs cannot meet the
second prong because the February 20 letter merely states the Corps’s opinions
Id. at 843–44.
12 Id. at 844.
13 Doc. 32.
14 Doc. 42.
15 Bennett v. Spear, 520 U.S. 154, 168–69 (1997).
on the borrow program requirements and the legal authority upon which it
relies. Defendants heavily on the Fifth Circuit’s opinion in Belle Co. v. US
Army Corp, which states that a jurisdictional determination that the plaintiff’s
property contained wetlands was not a final determination because the
plaintiff had an array of alternatives to choose from and was not required to
act in any particular way. 16 After Defendants filed their motion, however, the
Supreme Court reversed and remanded Belle for further consideration in light
of Army Corp v. Hawkes Co. 17 In Hawkes, the Supreme Court held that a
jurisdictional determination that a particular piece of property contains
“waters of the United States” and is subject to the Clean Water Act is a final
agency action. 18
It stated that “[t]he definitive nature of the approved
[jurisdictional determination] . . . gives rise to ‘direct and appreciable legal
consequences.’” 19 Despite this, Defendants subsisted at oral argument in their
belief that no final agency action has occurred in this case, and this Court
ordered supplemental briefing.
In their supplemental briefing, Defendants argue that the February 20,
2013 letter at issue here differs from the jurisdictional determination in
Hawkes and therefore does not amount to a final agency action. Defendants
argue that the letter “requires nothing of [Plaintiffs] and they are free to do as
they choose with the property.” 20 Defendants’ argument, however, ignores the
Court’s analysis in Hawkes, which states that a jurisdictional determination
declaring property as wetlands is a final agency action because it results in
Belle Co. v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014), cert. denied
sub nom. Kent Recycling Servs., LLC v. U.S. Army Corps of Engineers, 135 S. Ct. 1548 (2015),
reh'g granted, order vacated, 136 S. Ct. 2427 (2016), and cert. granted, judgment vacated
sub nom. Kent Recycling Servs., LLC v. U.S. Army Corps of Engineers, 136 S. Ct. 2427 (2016).
17 Kent Recycling Servs., LLC v. U.S. Army Corps of Engineers, 136 S. Ct. 2427 (2016).
18 U.S. Army Corps of Engineers v. Hawkes Co., 136 S. Ct. 1807 (2016).
20 Doc. 165.
legal consequences, namely the loss of the five year safe harbor. This is true
despite the fact that such a declaration does not require the property owner “to
do or refrain from doing anything to its property.” 21 It simply notifies the
property owner that a permit will be required prior to taking certain actions
on the property. 22 Indeed, just as in Hawkes, the letter at issue here does not
require the Plaintiffs to do or refrain from doing anything but merely requires
that they show proof of mitigation prior to supplying borrow material to the
Corps. This requirement is a “direct and appreciable legal consequence” for
Plaintiffs under the analysis set forth in Hawkes. In addition, Defendants have
not identified an alternative route by which Plaintiffs could have the Corps’s
action reviewed. Accordingly, this Court holds that the February 20, 2013
letter constitutes a final agency action, and this Court therefore has
jurisdiction to hear Plaintiffs’ claims.
The Mitigation Requirement
The Court next considers Plaintiffs’ argument that the Corps’s
Mitigation Requirement conflicts with the plain language of the WRDA.
Under Chevron, this Court must first consider “whether Congress has directly
spoken to the precise question at issue”—that is, whether the Corps can
require mitigation for the loss of BLH forests on property from which
contractor-supplied borrow material is excavated for use in a Corps project.
Plaintiffs allege that the WRDA does not require mitigation for impacts that
do not directly result from a water resource project. Specifically, Plaintiffs
allege that the WRDA is intended to address only those environmental impacts
that directly result from a water resource project—such as those impacts
sustained by the land on which a levee is erected—and not those that result
Belle Co., 761 F.3d at 391.
indirectly—such as those sustained by land from which borrow material is
taken for use on the levee.
Plaintiffs argue that requiring mitigation for
indirect impacts is inconsistent with the statutory plan set forth by the WRDA.
First, Plaintiffs argue that the WRDA requires the Corps to assess
potential environmental impacts in advance of a project and plan for mitigation
of those impacts. 23 Indeed, 33 U.S.C. § 2283(d)(1) states that a proposal for a
water resources project must contain “a recommendation with a specific plan
to mitigate for damages to ecological resources, including terrestrial and
aquatic resources, and fish and wildlife losses created by such project.”
Plaintiffs argue that the Mitigation Requirement conflicts with this mandate
because Defendants are unable to assess and plan for the impacts resulting
from the excavation of contractor-furnished borrow material until the
contractor selects a borrow supplier. Because it is not known at the outset
which suppliers will be selected and the environmental impact of extracting
borrow material from the land owned by those suppliers, the Corps cannot plan
to mitigate those impacts in advance. Plaintiffs argue that the total project
impact will not be known before the project is begun, making it impossible to
comply with the proposal requirements of 33 U.S.C. § 2283(d).
Second, Plaintiffs argue that the Mitigation Requirement conflicts with
the WRDA’s requirement that mitigation must occur before construction
begins on the project (and therefore before the impact has occurred). Indeed,
the WRDA states that mitigation “shall be undertaken or acquired before any
construction of the project . . . commences, or  shall be undertaken or acquired
concurrently with lands and interests in lands for project purposes (other than
mitigation of fish and wildlife losses.)” 24 Plaintiffs argue that the Mitigation
See 33 U.S.C. § 2283(d).
33 U.S.C. § 2283(a).
Requirement is inconsistent with the WRDA because it does not require
mitigation prior to construction, but rather, only requires that mitigation occur
before borrow is excavated from a supplier’s land. In addition, mitigation is
only required if a supplier is selected to provide borrow for the project.
However, the impact—the destruction of BLH forests—may have, as here, long
predated the mitigation.
Finally, Plaintiffs argue that the Mitigation Requirement conflicts with
the WRDA’s budget requirements. Pursuant to 33 U.S.C. § 2283, costs of
mitigation must be accounted for in the project budget. Plaintiffs contend that
the Mitigation Requirement allows the Corps to shift these costs to private
contractors and suppliers and circumvent their inclusion in the project budget.
In response to Plaintiffs’ argument that the Mitigation Requirement is
inconsistent with the prior planning, budgeting, and mitigating requirements
of the WRDA, Defendants point to the plain language of the WRDA, which
states that the Corps must mitigate for losses “resulting from any water
resources project” or “created by such project.” Indeed, the WRDA, does not
address a distinction between “direct” and “indirect” impacts, as Plaintiffs have
coined them. Based on the plain language of the WRDA, Defendants argue
that the Corps’s determination that impacts to borrow sites resulting from
levee construction must be mitigated is per se reasonable and rationally based.
They argue that this provision is unambiguous and thus entitled to deference
under Chevron step one.
In assessing both of the parties’ arguments, it is clear to this Court that
the WRDA is ambiguous as to whether the Corps can require mitigation for
the loss of BLH forests on property from which contractor-supplied borrow
material is excavated for use in building levees as part of the HSDRRS project.
While the plain language of the statute seems to indicate that all impacts must
be mitigated, Plaintiffs point to some of the statute’s requirements that may
be inconsistent with such a rule. For instance, the WRDA could be read, as
Plaintiffs have, to require that the Corps submit a proposal and budget for the
mitigation of all impacts of a water resources project at the time authorization
is sought for that project. 25 If the WRDA mandates such a comprehensive
proposal, then the Mitigation Requirement, through which the extent of
mitigation required is not determined until a supplier is selected by a
contractor, would be inconsistent with this mandate.
Having found that the WRDA is ambiguous as to the precise question at
issue, this Court must move to Chevron Step Two and determine “whether the
agency’s answer is based on a permissible construction of the statute.” This
Court holds that it is.
As Plaintiffs point out, “[t]he WRDA statutory scheme contemplates that
the Corps, not private parties, will be conducting mitigation.” 26 Typically if
borrow is required for a Corps project, the Corps will acquire a borrow site and
pay just compensation to the owner. 27 The Corps then mitigates for impacts
caused by excavation on the land that it has acquired. That said, the aftermath
of Hurricane Katrina was not a typical situation. The project of reinforcing the
levees and floodwalls in the New Orleans area, which required an
“unprecedented amount of borrow material,” was undertaken on an expedited
schedule “in light of the risk posed to the area by an unfinished system.” 28 “In
order to facilitate the use of vast amounts of borrow material needed to
construct the [HSDRRS], [the Corps] determined that it was in the best
interest of the Government for certain construction contracts to require the
See 33 U.S.C. § 2283(d)(1).
27 Doc. 102-1.
28 Doc 102-1.
contractor to furnish its own borrow material.” 29
The Corps therefore
instituted the contractor-furnished borrow program, a shift from usual
While the contractor-furnished borrow program may differ from the
typical process in which borrow is furnished by the government, the end result
is the same—borrow is excavated from land for use on a Corps project. That
said, this Court can see no policy reason why mitigation should not still be
required. “Plaintiffs do not contest that the Corps must mitigate for impacts
caused by the Corps’s own borrow excavation in the government-furnished
borrow program, or elsewhere.” 30 The Corps cannot then bypass this obligation
by using contractor-furnished borrow instead. Such a holding would be counter
to the policy espoused by the WRDA.
Policy arguments aside, the Mitigation Requirement is a reasonable
interpretation of the WRDA. The WRDA plainly states that the Corps is
required to mitigate for any impacts “resulting from” or “created by” a water
resources project such as the HSDRRS. Plaintiffs admit that the impacts
created on land from which government-furnished borrow is excavated are
project impacts that must be mitigated. It necessarily follows, then, that
impacts created on the land from which contractor-furnished borrow is
excavated are project impacts as well. Each are effects on the land from which
borrow is removed for a Corps’s project. The WRDA does not differentiate
between impacts that are created on land owned by the government or
otherwise. This Court finds that the Corps was reasonable in reaching this
conclusion and requiring mitigation of the impacts to BLH on these sites,
especially in light of the substantial deference owed to an agency’s construction
Doc. 115-17, p. 19.
Doc 111, p. 3.
of a statute under its administration. Accordingly, this Court holds that the
Corps’s imposition of the Mitigation Requirement is based on a permissible
construction of the statute and does not violate the WRDA.
The Purchase Requirement
Having held that the Mitigation Requirement complies with the WRDA,
this Court must now address Plaintiffs’ arguments regarding the Purchase
Requirement, which mandates that the only way to satisfy the Mitigation
Requirement is to purchase mitigation bank credits. The question at issue
here is whether the Corps can require the purchase of wetland mitigation
credits as the sole option for satisfying the Mitigation Requirement. Plaintiffs
argue that this requirement is arbitrary and capricious.
The WRDA speaks expressly to the mitigation of BLH forests, stating
that “mitigation plans shall ensure that impacts to bottomland hardwood
forests are mitigated in-kind, and other habitat types are mitigated to not less
than in-kind conditions, to the extent possible.” 31 In-kind mitigation of the
impacts to upland BLH forests requires the purchase of upland mitigation
credits from the same region or an alternative mitigation plan addressing
upland BLH forests. Instead, the Corps has required Plaintiffs to purchase
credits from a wetland mitigation bank in the same region.
At oral argument, the parties agreed there are no upland BLH mitigation
credits available to purchase in the region at issue. In addition, the record
reveals that the Corps felt that consideration of individual mitigation projects
would be less efficient, timely, and effective than requiring the purchase of
credits. The Corps explained that “[t]he creation and approval of a mitigation
plan . . . is a lengthy and detailed process that can take a year or more. . . . Not
only does the [Corps] not have the manpower to devote to this process for every
See 33 U.S.C. § 2283(d).
contractor-furnished borrow site, but it would significantly delay the approval
and use of those sites.” 32
As previously discussed, the HSDRRS was
undertaken on an expedited basis, and the Corps did not feel it had time to
consider individual mitigation plans. “The advantage of mitigation banks is
that they have already been approved and credits are readily available.” 33
Accordingly, for all intents and purposes, mitigation in-kind was not possible,
and the Corps resorted to the next most applicable form of mitigation—wetland
BLH mitigation bank credits from the same region. This decision was not
arbitrary and capricious, but rather, was in line with “the objective of ensuring
that Risk Reduction System projects are expeditiously built to protect the
residents of Greater New Orleans.” 34
In addition, Corps regulations reveal a preference for mitigation
through mitigation bank credits. 35 The regulations reveal that bank credits
are preferred for several reasons: (1) they can “help reduce risk and
uncertainty;” (2) they can “help reduce risk that mitigation will not be fully
successful;” (3) they “typically involve larger, more ecologically valuable
parcels, and more rigorous scientific and technical analysis, planning and
implementation than permittee-responsible mitigation;” (4) they require “site
identification in advance, project-specific planning, and significant investment
of financial resources that is often not practicable for many in-lieu fee
programs.” 36 Indeed, the Corps admits that pursuant to the WRDA it is
ultimately responsible for ensuring that mitigation is completed. Requiring
the purchase of mitigation credits, then, eliminates the possibility that the
Doc. 115-17, p. 19–20.
34 Doc. 106.
35 33 C.F.R. § 332.3; see also 33 U.S.C. § 2317b.
36 33 C.F.R. § 332.3(b)(2).
Corps will be required to step in to complete a mitigation project or that
mitigation will go unfinished.
Finally, Plaintiffs make much ado about the Corps’s requirement that
they pay for mitigation, arguing that it is the Corps’s responsibility to pay for
and undertake mitigation.
Indeed, this Court agrees that the ultimate
responsibility for mitigation lies with the Corps. The Mitigation and Purchase
Requirements put the initial onus on the landowner or contractor to foot the
bill for the mitigation credits, but the cost will ultimately lie with the Corps.
As the mitigation credits increase the contractors’ expenses, so too will the
amount it charges the Corps for those services increase. This Court does not
find then that the Corps has, as Plaintiffs put it, attempted to shift its
responsibilities under the WRDA by implementing the Mitigation and
For all of the foregoing reasons, this Court holds that the Purchase
Requirement is in line with the plain language of the WRDA and is a
reasonable interpretation thereof. The Corps was not arbitrary or capricious
in requiring the purchase of mitigation credits to satisfy the Mitigation
Finally, Plaintiffs allege the Corps’s actions constitute a taking. The
Takings Clause of the Fifth Amendment prohibits the government from taking
private property for public use without just compensation. 37 Plaintiffs allege
that the Mitigation and Purcahse Requirements amount to takings under the
analysis set forth in Nollan v. California Coastal Comm’n, 483 U.S. 825 (1987),
U.S. Const. amend. V, cl.4. The purpose of the Takings Clause is to prevent the
government “from forcing some people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.” Armstrong v. United States, 364 U.S. 40,
Dolan v. City of Tigard, 512 U.S. 374 (1994), and Koontz v. St. Johns River
Water Management District, 133 S. Ct. 2586 (2013), because the Corps has
“commanded that Plaintiffs relinquish funds in order to use their property in
a particular way.” Plaintiffs seek a declaratory judgment that “the Corps’s
actions violate the Takings Clause of the Constitution's Fifth Amendment” and
In response, Defendants argue that the takings cases cited by Plaintiffs
are inapplicable here. 39 Defendants point out that Nollan, Dolan, and Koontz
each consider whether the conditions of a land use permit amount to a taking.
Unlike these cases, Plaintiffs’ land is not subject to any regulatory action or
land-use permit, but instead, the Mitigation and Purchase Requirements are
obligations set forth in the Corps’s contracts with levee contractors.
Defendants argue that, therefore, this line of cases and the per se takings
analysis used therein are inapplicable. Plaintiffs rebut that the Mitigation and
Purchase Requirements are regulatory despite being imposed through a
contract because they implicate the sovereign interest of the federal
government and its public policy. Plaintiffs contend that the Mitigation and
Purchase Requirements are regulatory actions subject to a per se takings
In support of their position, Plaintiffs point to cases discussing whether
a law is regulatory or proprietary as part of a federal preemption analysis. 40
Doc. 31, p. 30.
Defendants also propound jurisdictional arguments already rejected by this Court.
See Se. Louisiana Bldg. & Const. Trades Council, AFL-CIO v. Louisiana ex rel.
Jindal, 107 F. Supp. 3d 584, 597–603 (E.D. La. 2015) (discussing whether a state law
prohibiting project labor agreements was proprietary or regulatory and thus subject to
preemption by the NLRA); Bldg. & Const. Trades Dep't, AFL-CIO v. Allbaugh, 295 F.3d 28,
36 (D.C. Cir. 2002) (discussing whether an executive order that that provided that no federal
While these cases provide some helpful language regarding whether the
government’s actions are proprietary or regulatory, none address the question
at hand. 41
The issue is whether the per se takings analysis used in Dolan,
Nollan, and Koontz should be extended to apply to conditions set forth by
contract, rather than in land use permits. Plaintiffs have not provided this
Court with any case using a per se takings analysis when the condition at issue
was contractual. Accordingly, this Court declines to extend the per se takings
analysis to this matter.
Even assuming, however, that the per se takings analysis applied here,
Plaintiffs could not succeed on their takings claim regarding the Mitigation
Requirement. In Koontz, the Supreme Court held that a monetary exaction for
mitigation as a condition of a land use permit must have an essential nexus
and rough proportionality to the impacts of the proposed development. 42
Regulations lacking a nexus and proportionality will be considered takings.
Plaintiffs argue that the Mitigation Requirement cannot satisfy this test
because the BLH forests on Idlewild Stage 2 were cut down years ago. “The
requirement that those trees now be replaced is not sufficiently related to the
excavation of clay for HSDRRS use because the trees are gone whether
Plaintiffs excavate and sell clay to the Corps or not. 43
This Court finds,
however, that Plaintiffs removed the trees at issue after their land had been
agency could require bidders for a construction contract to enter into a project labor
agreement was regulatory or proprietary and thus preempted by the NLRA); Cardinal
Towing & Auto Repair, Inc. v. City of Bedford, Tex., 180 F.3d 686, 696 (5th Cir. 1999)
(discussing whether a towing ordinance was proprietary or regulatory and thus preempted
by federal law).
41 See Allbaugh, 295 F.3d at 36 (“A condition that the Government imposes in
awarding a contract or in funding a project is regulatory only when, as the Supreme Court
explained in Boston Harbor, it ‘addresse[s] employer conduct unrelated to the employer’s
performance of contractual obligations to the [Government].’”).
42 Koontz v. St. Johns River Water Mgmt. Dist., 133 S. Ct. 2586, 2599 (2013).
43 Doc 100-1, p. 43.
approved for use in the contractor-furnished borrow program and the
Mitigation Requirement had been instituted. Plaintiffs therefore ask this
Court to find that the Mitigation Requirement constitutes a taking by looking
to events that occurred after its announcement. Plaintiffs cannot convert the
Mitigation Requirement into a taking by their own unilateral acts. Such a
holding would lead to absurd results, in which parties subject to mitigation
requirements could simply destroy the valued resources to avoid mitigating
their loss. This Court holds that the Mitigation Requirement has the essential
nexus and proportionality to the impacts on the BLH forests on Idlewild Stage
2. The requirement requires mitigation as mandated by the WRDA for only
those portions of BLH that are affected by the excavation of borrow material
for use on the HSDRRS project. The WRDA communicates the government’s
clear interest in protecting BLH forests. Accordingly, Plaintiffs would not
succeed on their per se takings claim even if such analysis applies in these
For the foregoing reasons, summary judgment is granted in favor of
Defendants. Plaintiffs’ APA and per se takings claims are dismissed with
prejudice. The only remaining claim is Plaintiffs’ regulatory takings claim.
New Orleans, Louisiana, this 14th day of September, 2016.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?