White Oak Realty, LLC et al v. United States Army Corps of Engineers et al
ORDER AND REASONS denying 32 Motion to Dismiss, or Alternatively, Motion for More Definite Statement as set forth in document. 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 is a Motion to Dismiss or Alternatively for a More
Definite Statement.1 For the following reasons, the Motion is DENIED.
This is a civil action for declaratory and injunctive relief. The plaintiffs
R. Doc. 32.
The following facts are drawn primarily from the second amended complaint. See
generally R. Doc. 31.
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. Under the
applicable statutes and regulations, the Corps determines whether a particular
location is a suitable source of borrow material and if so whether mitigation of
losses to fish and wildlife is necessary.3
At some point in 2010, Plaintiffs discovered the presence of borrow
material in Idlewood Stage 2.4
They subsequently filed a "suitability
determination" with the Corps to confirm the borrow material could be used in
HSDRRS projects. In October 2010, the Corps issued a preliminary report
approving the use of borrow material from Idlewood Stage 2 and nine other
sites.5 The report found that the excavation of borrow material from Idlewood
Stage 2 would cause "unavoidable impacts" to the environment.6 Accordingly,
if Idlewood Stage 2 were ultimately approved for HSDRRS projects, the
See 33 U.S.C. § 2283.
The complaint is unclear as to when Plaintiffs discovered the borrow material.
See R. Doc. 31-1.
Id. at p. 15.
landowner or contractor would be required to provide compensatory mitigation
prior to excavation by purchasing credits from a mitigation bank.7
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.8 The letter confirmed the preliminary report's determination that
excavation would harm the environment.9 The letter required Plaintiffs to
"provide proof of mitigation to the Corps . . . prior to excavation."10 The Corps
issued a similar letter on April 14, 2011, reaffirming the requirement that
Plaintiffs provide mitigation.11
The letter informed Plaintiffs that their
"compensatory mitigation requirements may be met" by obtaining credits from
select mitigation banks.12
Plaintiffs subsequently hired Mitigation Strategies, LLC ("Mitigation
Strategies") hoping to convince the Corps of the "legal and factual errors
underlying [its] mitigation requirements."13 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.
R. Doc. 31-3 at p. 2.
Id. at p. 3.
See R. Doc. 31-5.
Id. at p. 2.
R. Doc. 31 at ¶64.
The Corps disagreed. On June 24, 2011, the Corps informed Plaintiffs that
mitigation is "require[d] [to] be accomplished through the purchase of bank
credits."14 Mitigation Strategies responded to this letter with further efforts to
convince the Corps that mitigation was unnecessary. These efforts culminated
in a February 20, 2013 letter from the District Commander.15 The letter
reiterated the Corps's previous position that borrow material from Idlewood
Stage 2 could not be excavated for use in HSDRRS projects until credits were
purchased from a mitigation bank (the "Mitigation Requirement").16
Plaintiffs filed suit against the Corps and various Corps employees on
June 10, 2013.
They contend that the Water Resource Development Act
("WRDA"), 33 U.S.C. § 2201 et seq., does not authorize 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 and the Due Process
Clause of the Fifth Amendment.
Motion to Dismiss for Lack of Subject Matter Jurisdiction—Rule 12(b)(1)
A Rule 12(b)(1) motion challenges the subject matter jurisdiction of a
federal district court. "A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or constitutional power to
R. Doc. 31-6 at p. 2.
See R. Doc. 17-7.
adjudicate the case."17 In ruling on a Rule 12(b)(1) motion to dismiss, the court
may rely on (1) the complaint alone, presuming the allegations to be true; (2) the
complaint supplemented by undisputed facts; or (3) the complaint supplemented
by undisputed facts and by the court's resolution of disputed facts.18 The
proponent of federal court jurisdiction bears the burden of establishing subject
Motion to Dismiss for Failure to State a Claim—Rule 12(b)(6)
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead enough
facts "to state a claim to relief that is plausible on its face."20 A claim is
"plausible on its face" when the pleaded facts allow the court to "draw the
reasonable inference that the defendant is liable for the misconduct alleged."21
In reviewing the legal sufficiency of a complaint, the Court is mindful that Rule
12(b)(6) motions are disfavored under the law and rarely granted.22
Motion for a More Definite Statement—Rule 12(e)
A district court will grant a motion for a more definite statement when the
challenged pleading "is so vague or ambiguous that the [moving] party cannot
reasonably prepare a response."23 When adjudicating such motions, the Court
Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir.
Den Norske Stats Oljeselskap As v. HeereMac Vof, 241 F.3d 420, 424 (5th Cir. 2001).
See Physicians Hosps. of Am. v. Sebelius, 691 F.3d 649, 652 (5th Cir. 2012).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Lowery v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997).
Fed. R. Civ. P. 12(e). The moving party "must point out the defects complained of and
the details desired." Id.
must assess the complaint in light of the minimal pleading requirements of Rule
8.24 Rule 8(a)(2)requires that a pleading contain "a short and plain statement
of the claim showing that the pleader is entitled to relief."25 "Specific facts are
not necessary; the statement need only give the defendant fair notice of what the
. . . claim is and the grounds upon which it rests."26 In light of the liberal
pleading standard set forth in Rule 8, Rule 12(e) motions are disfavored.27
LAW AND ANALYSIS
Defendants move to dismiss this action on multiple grounds. Specifically,
Defendants argue that (1) Plaintiffs lack Article III standing; (2) Plaintiffs have
not challenged a "final agency action" under the Administrate Procedure Act
("APA"), 5 U.S.C. § 501 et seq.; (3) dismissal is warranted under the doctrine of
"prudential standing;" and (4) Plaintiffs fail to state a claim for relief under the
Takings Clause and Due Process Clause of the Fifth Amendment.
Whether Jurisdiction is Proper
Defendants' first two arguments—lack of Article III standing and final
agency action under the APA—are threshold issues that affect this Court's
Babcock & Wilcox Co. v. McGriff, Siebels & Williams, Inc., 235 F.R.D. 632, 633 (E.D.
Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 551 U.S. 89, 93 (2007) (internal quotation marks and citations
See Mitchell v. E–Z Way Towers, Inc., 269 F.2d 126, 132 (5th Cir.1959); Who Dat Yat
Chat, LLC v. Who Dat, Inc., Nos. 10–1333, 10–2296, 2012 WL 2087439, at *6 (E.D. La. June
subject matter jurisdiction.28 The Court addresses the jurisdictional challenges
A. Article III Standing
The doctrine of standing derives from Article III of the Constitution, which
limits the jurisdiction of federal courts to "Cases" and "Controversies."30 A case
is not justiciable unless the plaintiff has standing to sue.31 Article III standing
has three elements: "(1) an injury in fact, (2) a sufficient causal connection
between the injury and the conduct complained of, and (3) a likel[ihood] that the
injury will be redressed by a favorable decision."32 The party invoking the
federal court's jurisdiction bears the burden of establishing these elements.33
Nonetheless, the Supreme Court has cautioned that where, as here, standing is
challenged on the pleadings, "general factual allegations of injury resulting from
the defendant's conduct may suffice."34 This follows from the presumption that
See United States v. Hays, 515 U.S. 737, 742 (1995) ("The federal courts are under an
independent obligation to examine their own jurisdiction, and standing 'is perhaps the most
important of [the jurisdictional] doctrines.'") (alteration in original) (quoting FW/PBS, Inc. v.
Dallas, 493 U.S. 215, 230–31 (1990)); Peoples Nat'l Bank v. Office of Comptroller of Currency
of U.S., 362 F.3d 333, 336 (5th Cir. 2004) ("If there is no 'final agency action,' a federal court
lacks subject matter jurisdiction.").
See Sinochem Int'l Co. LTD v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 431 (2007)
("[J]urisdictional questions ordinarily must precede merits determinations in dispositional
U.S. Const. art. III, § 2.
See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 102 (1998).
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (alteration in
original) (internal quotation marks omitted).
See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
Id. at 560.
general allegations in a complaint encompass the specific facts necessary to
support those allegations.35
An injury sufficient to establish Article III standing must be "(a) concrete
and particularized . . . and (b) actual or imminent, not conjectural or
Plaintiffs' allegations of injury are multiple.
Plaintiffs allege (1) that an existing contract has been harmed,37 (2) that the
Mitigation Requirement is prohibitively expensive, and (3) that they are now
subject to increased business competition.
At the pleadings stage, these
allegations clearly suffice to establish injury-in-fact.38
In order to establish the requisite causal connection between injury and
misconduct, the plaintiff need not show that the defendant's actions "are the
very last step in the chain of causation,"39 or that the defendant's actions are a
proximate cause of his injury.40 Rather, the plaintiff need only establish his
Steel Co., 523 U.S. at 104.
Lujan, 504 U.S. at 560 (internal quotation marks and citation omitted).
At some point after the Corps issued the preliminary report, Plaintiffs contracted with
an independent mining company to excavate, process, and sell borrow material from Idlewood
Stage 2. The contract provided that Plaintiffs would receive a royalty payment on each ton of
borrow material sold.
See Envtl. Defense Fund v. Marsh, 651 F.2d 983, 1003 (5th Cir. 1981) ("Economic
injury from business competition created as an indirect consequence of agency action can serve
as the required 'injury in fact.'"); Lujan, 504 U.S. at 578 (finding that "a company's interest in
marketing its product free from competition" is a "legally cognizable injur[y]" for purposes of
Article III standing). It should be noted that just like the Plaintiffs in this matter, the
plaintiffs in Marsh alleged a violation of the WRDA.
Bennet v. Spear, 520 U.S. 154, 168–69 (1997).
Lexmark, 134 S. Ct. at 1391 n.6.
injury is "fairly traceable" to the defendant's actions.41
Plaintiffs' injuries are fairly traceable to the Mitigation Requirement.
Plaintiffs' contract with the mining company was directly affected by the
Mitigation Requirement. Moreover, Plaintiffs allege it will cost approximately
$1.64 million to purchase mitigation credits.42 Obviously, Plaintiffs would not
be subject to this financial burden but for the Mitigation Requirement. Plaintiffs
further allege the Mitigation Requirement has made their business significantly
less profitable, as it requires them to sell borrow material above market price in
order to recoup the cost of purchasing mitigation credits.43
In response, Defendants narrowly focus on the allegations in the complaint
relating to the business relationship between Plaintiffs and the mining company.
They argue that Plaintiffs are only harmed by the Mitigation Requirement
insofar as the mining company is harmed. According to Defendants, this causal
chain is too attenuated to establish standing.
Defendants' argument unduly restricts and misreads the allegations in the
complaint. Plaintiffs have clearly alleged the Corps requires the contractor or
Plaintiffs to provide mitigation.44 Thus, if Plaintiffs are required to purchase
mitigation credits, the resulting economic injury is directly traceable to the
Mitigation Requirement. Unlike Defendants' tortuous argument, the allegations
establishing causation are straightforward: the Mitigation Requirement imposes
Clapper v. Amnesty Int'l USA, 133 S. Ct. 1138, 1147 (2013).
R. Doc. 31 at ¶62.
See id. at ¶82.
See, e.g., id. at ¶51.
a substantial cost on Plaintiffs that prohibits the profitable sale of borrow
material from Idlewood Stage 2.
Having sufficiently pleaded an injury-in-fact fairly traceable to the
Mitigation Requirement, Plaintiffs need only establish redressability, that is, "a
likelihood that the requested relief will redress the alleged injury."45 A plaintiff
must demonstrate redressability for each form of relief sought.46 But where, as
here, a plaintiff seeks both declaratory and injunctive relief, these two inquires
essentially collapse into one.47
Plaintiffs seek a declaration that the Mitigation Requirement violates the
WRDA, the Takings Clause, and the Due Process Clause. Plaintiffs also request
the Court to enjoin the Corps from requiring any mitigation at all or
alternatively from requiring the purchase of mitigation credits as the sole form
of compensatory mitigation. The Court clearly has the power to provide the
requested relief and finds that a judgment in favor of Plaintiffs would redress
their injuries.48 Plaintiffs have sufficiently pleaded the triad of injury-in-fact,
causation, and redressability, and therefore have established standing to sue
under Article III.
Steel Co., 523 U.S. at 103.
St. Bernard Citizens for Envtl. Quality, Inc. v. Chalmette Refining, L.L.C., 354 F.
Supp. 2d 697, 705 (E.D. La. 2005).
See Consumer Data Indus. Ass'n v. King, 678 F.3d 898, 906 (10th Cir. 2012) (finding
that "if injunctive relief . . . meets the redressability requirement, . . . the same must be true
of declaratory relief."
Cf. Steel Co., 523 U.S. at 108 (noting that when a plaintiff "ha[s] alleged a continuing
violation or the imminence of a future violation . . . injunctive relief . . . would remedy that
B. Judicial Review Under the APA
The Federal Government is immune from suit absent a waiver of sovereign
immunity.49 The APA provides such a waiver and allows judicial review of
agency action when (1) the claimant does not seek money damages,50 (2) no other
statute precludes judicial review,51 and (3) the challenged action is not
committed to agency discretion by law.52 Plaintiffs do not seek money damages.
Moreover, nothing in the WRDA expressly or implicitly precludes judicial review,
nor is the provision under which Plaintiffs have filed suit—33 U.S.C. §
Where, as here, the relevant statute does not provide for judicial review,54
the APA authorizes judicial review of "final agency action for which there is no
other adequate remedy" at law.55 The question presented is whether the District
Commander's February 20, 2013 letter constitutes "final agency action" for
purposes of the APA. The parameters of this inquiry are well-defined. In order
to be considered final, agency action must (1) "mark the consummation of the
Loeffler v. Frank, 486 U.S. 549, 554 (1988).
5 U.S.C. § 702.
5 U.S.C. § 701(a)(1).
5 U.S.C. § 701(a)(2).
The relevant portions of the statute use the imperative "shall." See, e.g., 33 U.S.C.
§ 2283(a)(1)(A), (d). Given the language chosen, a finding of agency discretion "would fly in the
face of [the] text." Bennett, 520 U.S. at 175.
See Marsh, 651 F.3d at 1003 ("[T]he WRDA establishes no specific right to judicial
review of an agency action.").
Belle Co. v. U.S. Army Corps of Eng'rs, No. 13–30262, 2014 WL 3746464, at *2 (5th
Cir. 2014); 5 U.S.C. § 704.
agency's decision-making process," and (2) "be one by which rights or obligations
have been determined, or from which legal consequences will flow.56
undertaking this two-part inquiry, the Court is "guided by the Supreme Court's
interpretation of the APA's finality requirement as 'flexible' and 'pragmatic.'"57
Agency action satisfies the first part of this inquiry when the agency "has
asserted its final position on the factual circumstances underpinning its action,"
or when the action "has proceeded through an administrative appeal process and
is not subject to further agency review."58 Reviewing the allegations in the
complaint in the light most favorable to Plaintiffs, the Court finds that the
District Commander's letter marks the consummation of the Corp's decisionmaking process.59
Defendants have not identified any allegations in the
complaint nor provided any evidence to the contrary.
Instead, Defendants contend the District Commander's letter is not final
because it does not affect Plaintiffs' legal rights or obligations. Defendants quote
the following language from National Pork Producers Council v. E.P.A. in
support of their position: "an agency's actions are not reviewable when they
merely reiterate what has already been established."60 Because the Mitigation
Bennett, 520 U.S. at 177–78.
Qureshi v. Holder, 663 F.3d 778, 781 (5th Cir. 2011) (quoting Abbott Labs. v. Gardner,
387 U.S. 136, 149–50 (1967)).
Belle Co., 2014 WL 3746464, at *4.
See Ciba-Geigy Corp. v. E.P.A., 801 F.2d 430, 437 (D.C. Cir. 1986) (finding guidance
letter marked consummation of decision-making process where court had "no reason to believe
that the [author] lack[ed] authority to speak for [the agency] . . . or that his statement of the
agency's position could be appealed to a higher level of [the agency's] hierarchy.").
635 F.3d 738, 756 (5th Cir. 2011).
Requirement has been in effect for years, Defendants argue the District
Commander's letter could not have affected Plaintiffs' legal rights. The Court
disagrees for multiple reasons.
First, National Pork Producers is inapposite. In that case, the court found
guidance letters issued by the EPA that "merely restate [a statute's] prohibition
. . . have no effect on a party's rights or obligations."61 The letter issued in this
case does not merely restate the requirements of the WRDA. Plaintiffs argue the
letter provides an inaccurate restatement of the WRDA's mitigation
requirement. Moreover, unlike the letters in National Pork Producers, the
District Commander's letter clearly imposes an affirmative obligation, namely,
to purchase mitigation credits prior to the excavation of borrow material from
Idlewood Stage 2. This mandate clearly determines rights or obligations by
imposing legal consequences on Corps officials administering the Mitigation
Requirement and on landowners like Plaintiffs who must comply with the
The final hurdle to judicial review is that Plaintiffs have no other adequate
remedy at law.63 Given that the WRDA does not provide a private right of
action, the Court can conceive of no other way that Plaintiffs could obtain the
relief requested other than by filing suit under the APA. Judicial review is
See Nat'l Envtl. Dev. Ass'n's Clean Air Project v. E.P.A., 752 F.3d 999, 1007 (D.C. Cir.
See Sackett v. E.P.A., 132 S. Ct. 1367, 1372 (2012); 5 U.S.C. § 704.
Whether Plaintiffs State a Claim for Relief
Having determined that jurisdiction is proper, the Court may now proceed
to a merits determination. Defendants move to dismiss all of Plaintiffs' claims
for lack of prudential standing or alternatively to dismiss Plaintiffs' Fifth
Amendment claims under Rule 12(b)(6). The Court addresses each argument
A. "Prudential Standing" or "Right to Sue"?
The Supreme Court's standing jurisprudence has historically consisted of
two strands: "Article III standing, which enforces the Constitution's
case-or-controversy requirement . . . and prudential standing, which embodies
judicially self-imposed limits on the exercise of federal jurisdiction."64
recently as 2012, the Supreme Court reaffirmed that a litigant must establish
both Article III standing and prudential standing as a sine qua non to suit under
The Supreme Court's recent decision in Lexmark appears to have severed
the legs from the doctrine of prudential standing.66 In a unanimous opinion
issued earlier this year, the Court explained that the idea that a federal court
"can limit a cause of action that Congress has created merely because
Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 11–12 (2004) (internal quotation
marks and citations omitted).
See Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak, 132 S. Ct.
2199, 2210 (2012).
See Excel Willowbrook, L.L.C. v. JP Morgan Chase Bank, Nat'l Ass'n, Nos. 12–20367,
12–20375, 12–20376, 12–20377, 12–20378, 12–20381, 12–20382, 12–10784, 2014 WL 1633508,
at *5 (5th Cir. 2014) (recognizing that "the continued vitality of prudential 'standing' is now
uncertain in the wake of the Supreme Court's recent decision in Lexmark.").
'prudence' dictates" is fundamentally inconsistent with a federal court's
"virtually unflagging" obligation to exercise jurisdiction.67 Thus, the proper
inquiry is not whether a federal court should decline to exercise jurisdiction but
instead whether a particular plaintiff "falls within the class of plaintiffs whom
Congress has authorized to sue [under the relevant statute]."68
A plaintiff establishes the statutory "right to sue"69 if (1) his interests "fall
within the zone of interests protected" by the statute, and (2) his injuries are
proximately caused by a violation of the statute.70 When applied to suit under
the APA, the zone-of-interests test "is not especially demanding."71 "[T]he test
forecloses suit only when a plaintiff's 'interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it cannot reasonably
be assumed that Congress intended to permit the suit.'"72
Lexmark, 134 S. Ct. at 1386–88.
Id. at 1387. Unlike when a court considers Article III standing, "[t]he absence of a
valid (as opposed to arguable) cause of action does not implicate subject-matter jurisdiction,
i.e., the court's statutory or constitutional power to adjudicate the case." Id. at 1387 n.4
(emphasis in original). Accordingly, to the extent the doctrine of prudential standing remains
viable, it should no longer be considered alongside Article III standing as a threshold
jurisdictional requirement. Rather, prudential standing—in whatever form it still exists—is
properly considered on a motion to dismiss for failure to state a claim upon which relief can be
After striking down the doctrine prudential standing, the Court applied its newlyarticulated framework under the heading "Static Control's Right To Sue Under § 1125(a)." See
id. at 1387 (emphasis added).
See id. at 1388–91. The first element—often referred to as the "zone-of-interests"
test—has historically formed part of the prudential standing doctrine. See id. at 1368. Despite
the apparent repudiation of this doctrine, the zone-of-interests test remains relevant for
determining a plaintiff's statutory right to sue. See id. at 1388–90.
Id. at 1389.
Id. at 1389 (quoting Patchak, 132 S. Ct. at 2210).
Defendants argue that Plaintiffs impermissibly apply the zone of interests
test to multiple provisions of the WRDA, namely, 33 U.S.C. §§ 2281 and 2283.
Citing the Supreme Court's 1997 decision in Bennett, they argue the test should
only be applied to the provision under which suit is brought—in this case, 33
U.S.C. § 2283. According to Defendants, Section 2283 does not protect Plaintiffs'
interests. The Court disagrees with this line of argument for multiple reasons.
First, Bennett does not support the proposition for which it is cited. The
plaintiffs in Bennett alleged that a biological opinion issued by the Fish and
Wildlife Service violated, inter alia, Section 1536 of the Endangered Species Act
of 1973 ("ESA"), 16 U.S.C. § 1531 et seq.73 One of the issues presented was
whether the plaintiffs had prudential standing to bring this claim under the
APA.74 The court of appeals held that the zone of interests test was not met,
"since petitioners are neither directly regulated by the ESA nor seek to vindicate
its overarching purpose of species preservation."75 The Supreme Court reversed,
holding that whether the zone of interests test is met "is to be determined not by
reference to the overall purpose of the Act in question [here, species
preservation], but by reference to the particular provision of law upon which the
plaintiff relies."76 Accordingly, the Court applied the zone of interest test to
520 U.S. at 157–60.
See id. at 174–77.
Id. at 175 (emphasis added).
Id. at 175–76 (alteration in original).
See id. at 176–77.
Fairly read, Bennett does not stand for the proposition that a court is per
se precluded from considering the overall purpose of the statutory scheme in
applying the zone of interests test. Rather, Bennett merely held that it was legal
error for the court of appeals to focus solely on the ESA's purpose to the
exclusion of the provision under which suit was brought. Nothing in the opinion
categorically forbids the district court from considering the overarching purpose
of an act in determining whether a provision of that act protects a particular
Second, even assuming Bennett requires the zone of interest test only be
applied to the statutory provision allegedly violated, the Lexmark Court
overruled Bennett on this point.78 The plaintiffs in Lexmark brought suit under
the Lanham Act, alleging false advertising under 15 U.S.C. § 1125(a).79 As in
Bennett, the Court addressed whether the plaintiff's interests were co-extensive
with those protected by the relevant statute so as to establish prudential
standing under the APA. Unlike Bennett, however, the Lexmark Court answered
this question by "examining a detailed statement of the statute's purposes."80
The Court found that statement in a separate provision of the Lanham
Act—Section 1127.81 The Court then compared the interests articulated in
Whether Lexmark overruled Bennett is a question of first impression in the federal
See 134 S. Ct. at 1384.
Id. at 1389.
Id. Section 1127 provides in relevant part as follows:
"The intent of this chapter is to regulate commerce within the
control of Congress by making actionable the deceptive and
misleading use of marks in such commerce; to protect registered
Section 1127 with those asserted by the plaintiff, ultimately concluding the
latter fell within the aegis of the former.82 In fact, the Court did not even
mention Section 1125 in its zone-of-interests analysis.
Lexmark makes clear that—whatever the previous import of Bennett—a
court may properly consider the overall purpose of a Congressional act when
applying the zone of interests test, especially if that purpose is expressly
articulated in a separate provision of the act. Like the Lanham Act, the WRDA
contains a detailed statement of the statute's overarching purposes:
Enhancing national economic development (including
benefits to particular regions of the Nation not
involving the transfer of economic activity to such
regions from other regions), the quality of the total
environment (including preservation and enhancement
of the environment), the well-being of the people of the
United States, the prevention of loss of life, and the
preservation of cultural and historical values shall be
addressed in the formulation and evaluation of water
resources projects to be carried out by the Secretary,
and the associated benefits and costs, both quantifiable
and unquantifiable, and information regarding
potential loss of human life that may be associated with
marks used in such commerce from interference by State, or
territorial legislation; to protect persons engaged in such
commerce against unfair competition; to prevent fraud and
deception in such commerce by the use of reproductions, copies,
counterfeits, or colorable imitations of registered marks; and to
provide rights and remedies stipulated by treaties and
conventions respecting trademarks, trade names, and unfair
competition entered into between the United States and foreign
See id. at 1393.
flooding and coastal storm events, shall be displayed in
the benefits and costs of such projects.83
The Plaintiffs' alleged economic injuries fall squarely within the auspices
of the interests protected by the WRDA. This conclusion finds support in Fifth
Circuit precedent. In Marsh, the Fifth Circuit interpreted a substantially
similar statement of purpose in a federal water resources statute.84 That
statement required federal water projects to further the objectives of "enhancing
regional economic development, the quality of the total environment . . . the
well-being of the people of the United States, and the national economic
development."85 The Fifth Circuit found this language to be "explicit evidence
that Congress intends federal projects to be governed in part by considerations
of local economic development, such as the economic well-being of the
Section 2281(a) of the WRDA contains a virtually identical statement of
purpose.87 Accordingly, it follows that one objective of the WRDA is to promote
local economic development, which includes the economic well-being of those
affected by WRDA regulations. Plaintiffs allege that a regulation promulgated
under the WRDA—the Mitigation Requirement—has caused them economic
injury. Under the liberal zone-of-interest test applicable to the APA, the Court
33 U.S.C. § 2281(a).
See 651 F.3d at 1004–05.
Id. at 1004 (alteration in original) (quoting 42 U.S.C. § 1962-2).
Id. at 1004.
See supra note 83.
has no problem concluding that the interests asserted in the complaint are
sufficiently consistent with the interests the WRDA is designed to protect.
Plaintiffs have passed the zone-of-interest test, and the Court must now
determine whether the allegations in the complaint establish proximate
The question presented "is whether the harm alleged has a
sufficiently close connection to the conduct the statute prohibits."89
differently, a court inquires whether the plaintiff's injuries are "too remote from
the defendant's unlawful conduct."90
Applying these precepts to the case at bar, the Court finds that Plaintiffs
have adequately pleaded a causal connection between their injuries and
Defendants' alleged misconduct. The economic injury alleged by Plaintiffs would
not have occurred but for the Mitigation Requirement. Accordingly, Plaintiffs
have the right to sue under Section 2283 of the WRDA.
B. The Takings Clause
The Takings Clause of the Fifth Amendment prohibits the government
from taking private property for public use without just compensation.91 The
Supreme Court recognizes two distinct classes of takings that require
See Lexmark, 134 S. Ct. at 1393.
Id. at 1390.
Id. (internal quotation marks omitted).
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, 49
compensation.92 The first involves the "direct appropriation" of private property
or the "practical ouster of [the owner's] possession."93
The other type of
taking—a so-called "regulatory taking"—occurs when government regulation of
private property is "so onerous that its effect is tantamount to a direct
appropriation or ouster."94 Plaintiffs allege the Corps's actions constitute a
The Supreme Court has generally eschewed any set formula for
determining whether a regulatory action constitutes a taking.95 Nonetheless,
certain bright-line rules have emerged.
For example, when the owner is
required to endure a "permanent physical invasion" of his property, the
government must provide just compensation.96 Another type of per se taking
occurs when a regulation "denies all economically beneficial or productive use of
Neither of these situations is presented by the case at bar. Plaintiffs do
not allege a direct appropriation of their land. Moreover, the allegations in the
complaint do not indicate that Plaintiffs have been completely deprived of any
beneficial uses so as to leave their property "economically idle."98 Rather,
See Yee v. City of Escondido, Cal., 503 U.S. 519, 522–23 (1992).
Lucas v. S.C. Coastal Coalition, 505 U.S. 1003, 1014 (1992).
Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 537 (2005).
Tahoe–Sierra Pres. Council, Inc. v. Tahoe Reg'l Planning Agency, 535 U.S. 302, 326
(2002); Lucas, 505 U.S. at 1015.
Lingle, 544 U.S. at 538.
Lucas, 505 U.S. at 1015.
Id. at 1019.
Plaintiffs allege the Mitigation Requirement made Idlewood Stage 2 "less
valuable,"99 thereby implying the land still retains some value. The Supreme
Court has clarified that the "total takings rule" only applies in the
"extraordinary circumstance" where government regulation "wholly eliminate[s]
the value" of private property.100
Subject to one exception inapplicable here,101 the constitutionality of a
regulatory taking is measured against the "justice and fairness" of the
governmental action.102 To elucidate these abstract concepts, the Supreme Court
has enumerated multiple factors a court may consider, including "the
regulation's economic effect on the landowner, the extent to which the regulation
interferes with reasonable investment-backed expectations, and the character
of the government action."103 This inquiry is necessarily fact-intensive,104 and is
See R. Doc. 31 at ¶83; see also id. at ¶118 (alleging the Mitigation Requirement
"substantially decreases the value of the Idlewild Stage 2 tract"); id. at ¶134 ("[T]he economic
impact of the [Mitigation Requirement] . . . is . . . in the form of . . . dramatic depreciation of
See Tahoe–Sierra, 535 U.S. at 1483.
In Lingle, the Supreme Court held that land-use exactions are not subject to the
multi-factor balancing test described infra but are instead analyzed according to the Court's
decisions in Nollan v. California Coastal Communication, 483 U.S. 825 (1987), and Dolan v.
City of Tigard, 512 U.S. 374 (1994). See Lingle, 544 U.S. at 546–48.
See E. Enters. v. Apfel, 524 U.S. 498, 523 (1998).
Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001) (citing Penn Cent. Transp. Co.
v. New York City, 438 U.S. 104 (1978)).
See Tahoe–Sierra, 535 U.S. at 322 ("Our regulatory takings jurisprudence . . . is
characterized by essentially ad hoc, factual inquiries, . . . designed to allow careful examination
and weighing of all the relevant circumstances.") (internal quotation marks and citations
omitted); Yee, 503 U.S. at 523 (noting that a regulatory takings analysis "necessarily entails
complex factual assessments of the purposes and economic effects of government actions.").
therefore "seldom" appropriate for resolution on the pleadings.105 The Court
finds no reason to deviate from this general rule and will therefore deny the
motion to dismiss.
C. Due Process
The Fifth Amendment forbids the deprivation of "life, liberty, or property,
without due process of law."106
Due process offers both substantive and
procedural protections.107 The procedural component ensures that an individual
is given notice and an opportunity to be heard before he or she is a deprived of
a property interest,108 whereas the substantive component "bars certain
arbitrary, wrongful government actions regardless of the fairness of the
procedures used to implement them."109
Defendants move to dismiss Plaintiffs' claim for violation of their rights
to procedural due process. The complaint, however, does not assert a procedural
due process claim.
Rather, it alleges the Corps's decision to impose the
Mitigation Requirement was arbitrary and capricious.110 Accordingly, Plaintiffs
McDougal v. Cnty. of Imperial, 942 F.2d 668, 676 (9th Cir. 1991). As the Ninth
Circuit explained in an earlier opinion: "Th[e] admonition [against Rule 12(b)(6) dismissal] is
perhaps nowhere so apt as in cases involving claims of inverse condemnation where the
Supreme Court itself has admitted its inability to develop any set formula for determining
when compensation should be paid, . . . resorting instead to essentially ad hoc, factual inquiries
to resolve this difficult question." Hall v. City of Santa Barbara, 833 F.2d 1270, 1274 (9th Cir.
1986) (internal quotation marks and citation omitted).
U.S. Const. amend. V, cl. 3.
See Frazier v. Garrison I.S.D., 980 F.2d 1514, 1528 (5th Cir. 1993).
See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).
Zinermon v. Burch, 494 U.S. 113, 125 (1990) (internal quotation marks omitted).
See R. Doc. 31 at ¶¶138–44. Plaintiffs' opposition memorandum also makes clear
that their claim is one for substantive due process; not procedural due process. See R. Doc. 37
clearly invoke the substantive protections of the Due Process Clause.111 Because
Plaintiffs have not asserted a procedural due process claim, the motion to
dismiss same is denied.
Whether the Court Should Compel a More Definite Statement
Defendants argue the complaint is impermissibly vague for failure to "put
forward a specific legal theory supported by citations."112 This argument is
deficient from root to stem. The law is clear that a complaint need not identify
with precision the legal basis for the relief requested.113 Rather, a complaint
satisfies the liberal pleading requirements of Rule 8 if it alleges facts sufficient
to provide notice of a claim.114 The complaint does just that. Moreover, by filing
a motion to dismiss discrete claims, Defendants refute their own argument that
the complaint is too vague to answer.115
The motion for a more definite
statement is denied.
at p. 24–25.
In "rare cases," a substantive due process claim may be premised on a deprivation
of property. See Simi Inv. Co. v. Harris Cnty., Tex., 256 F.3d 323, 323–24 (5th Cir. 2001) (per
curiam). The Court need not address whether this case presents one of those rare
R. Doc. 32-1 at p. 24.
See McManus v. Fleetwood Enters., Inc., 320 F.3d 545, 551 (5th Cir. 2003) ("The
plaintiff need not correctly specify the legal theory, so long as the plaintiff alleges facts upon
which relief can be granted."); Dileo v. Lakeside Hosp., No. 09–2838, 2010 WL 1936221, at *3
(E.D. La. May 12, 2010) ("Although plaintiffs do not specifically identify the legal basis for their
claims, such specificity is not required under the federal rules.").
See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
See Murungi v. Tex. Guaranteed, 646 F. Supp. 2d 804, 811 (E.D. La. 2009) (denying
motion for more definite statement where defendant had previously filed answers and motions
Plaintiffs have established standing and therefore the justiciability of this
case under Article III. Furthermore, the Court finds that judicial review is
proper under the APA, that Plaintiffs state a claim for relief under the Fifth
Amendment, and that the complaint satisfies the notice pleading requirement
of Rule 8. Accordingly, the instant Motion is denied in its entirety.
New Orleans, Louisiana, this 2nd day of September, 2014.
JANE TRICHE MILAZZO
UNITED STATES DISTRICT JUDGE
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