Lewis et al v. United States et al
Filing
67
ORDER AND REASONS - IT IS HEREBY ORDERED that plaintiff's 50 Motion for Declaratory Judgment and Injunction is DENIED. FURTHER ORDERED that plaintiff's 46 Motion Requesting the Court to Allow Limited Supplemental Discovery is DENIED. Signed by Judge Mary Ann Vial Lemmon on 8/18/2020.(sbs)
Case 2:18-cv-01838-MVL-JVM Document 67 Filed 08/18/20 Page 1 of 5
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GARRY L. LEWIS, ET AL
CIVIL ACTION
VERSUS
NO: 18-1838
UNITED STATES ARMY CORPS OF
ENGINEERS, ET AL
SECTION: "S" (1)
ORDER & REASONS
IT IS HEREBY ORDERED that plaintiff's Motion for Declaratory Judgment and
Injunction (Rec. Doc. 50) is DENIED;
IT IS FURTHER ORDERED that plaintiff's Motion Requesting the Court to Allow
Limited Supplemental Discovery (Rec. Doc. 46) is DENIED.
BACKGROUND
In this matter, plaintiffs have appealed the United States Army Corps of Engineers
("Corps") approved jurisdictional determination. The matter was brought under the
Administrative Procedure Act, and through cross-motions for summary judgment, called upon
the court to review the agency decision based upon the administrative record. The scope of the
administrative record was previously determined through motion practice. See Rec. Doc. 27.
While the cross motions were under advisement, on June 22, 2020, a new Navigable
Waters Protection Rule: Definition of “Waters of the United States,” 85 FR 22250-01, 2020 WL
1914736, came into effect (the "New Rule"). The New Rule eliminates the case-specific
"significant nexus" analysis upon which the Corp's jurisdictional determination was premised. After
the New Rule was enacted, but prior to its effective date, the court directed the parties to file
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additional briefing on the impact of the New Rule. The Corps responded that the New Rule
did not invalidate the AJD appealed from, which remains valid until its expiration date, citing the
New Rule, 85 FR 22250-01, 2020 WL 1914736, *22331-22332.
Plaintiffs acknowledged that the New Rule did not render moot the present case.
However, plaintiffs also filed the instant motion seeking declaratory judgment and injunctive
relief in addition to that prayed for in their original complaint. The original complaint prayed for
an injunction prohibiting the Corps from regulating plaintiffs’ property in this case under the
Clean Water Act ("CWA"), and a declaration that the approved jurisdictional determination be
set aside as arbitrary, capricious, and contrary to law and the United States Constitution.
In the instant motion, plaintiffs seek a declaration that would enjoin “restriction of
Plaintiffs’ Property, land and roadside ditches”; declares that any land or non-traditionally
navigable water located more than one river mile from the nearest traditionally navigable water
shall not be regulated by the Corps under the CWA; declares that any land or non-navigable
tributary within or above the 100-year flood plain of the nearest traditionally navigable water
shall not be regulated by the Corps under the CWA; declares that roadside ditches shall not be
regulated by the Corps under the CWA; declares that wetlands and non-navigable tributaries
shall be regulated by the Corps under the CWA only when the Rapanos plurality and
concurrence standards are met; declares that “‘[p]ast and future’ percentage wetlands are not
covered under the [CWA]”; and declares that any rule or interpretation inconsistent with the
order shall not be enforceable in this Circuit.
In addition, plaintiffs seek to conduct discovery regarding how the New Rule will be
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interpreted and implemented. Rec. Doc. 46.
DISCUSSION
The Declaratory Judgment Act provides: “In a case of actual controversy within its
jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.” 28 U.S.C. § 2201(a). The Declaratory
Judgment Act is “an authorization, not a command.” Pub. Affairs Assocs., Inc. v. Rickover, 369
U.S. 111, 112 (1962); see also, Soc'y of Separationists, Inc. v. Herman, 959 F.2d 1283, 1287 (5th
Cir. 1992). It gives federal courts the competence to declare rights, but it does not impose a duty
to do so. If there is jurisdiction, whether to grant a declaratory judgment is within the sound
discretion of the trial court. Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995).
The United States Supreme Court has emphasized that the declaratory judgment
procedure may not be used to preempt or prejudge issues that are committed to initial decision to
an administrative body. Public Service Commission v. Wycoff Company, 344 U.S. 237, 246
(1952); see also, Atl. & Gulf Stevedores, Inc. v. Donovan, 274 F.2d 794, 803 n. 11 (5th Cir.
1960) ("Declaratory relief cannot be used to review or anticipate action of an administrative
agency as to which a review procedure. . . is established." ).
Moreover, “[c]ourts in the Fifth Circuit regularly reject declaratory judgment claims
seeking the resolution of issues that will be resolved as a part of the claims in the lawsuit.”
Perry v. H.J. Heinz Co. Brands, LLC, 2019 WL 2423231, at *3 (E.D. La. June 10, 2019)(citing
Am. Equip. Co. v. Turner Bros. Crane & Rigging, LLC, 2014 WL 3543720, at *4 (S.D. Tex.
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July 14, 2014)(citing numerous cases); see also, 6 WRIGHT & MILLER, FED. PRAC. & PROC. CIV.
§ 1406, at 30-31 (3d ed.) (“When the request for declaratory relief brings into question issues
that already have been presented in plaintiff's complaint and defendant's answer to the original
claim, however, a party might challenge the counterclaim on the ground that it is redundant and
the court should exercise its discretion to dismiss it.")).
In this case, plaintiffs seek a broad declaration establishing a definition of waters of the
United States that would exclude their property from CWA jurisdiction. They further request that
"any executive agency rule or interpretation inconsistent with the [requested] judgment shall not
be enforceable in this Circuit." Thus, plaintiffs seek a judgment that is duplicative of the relief
sought in the complaint, and also circumvents the agency's role in future cases.
To the extent plaintiffs seek a declaration to resolve the issues in the present case, the
parties' cross-motions for summary judgment under the APA are ruled on in a companion order
issued contemporaneously with this order. Additional declaratory relief would thus be redundant
and is therefore denied.
Plaintiffs also seek a declaration to forestall future litigation. Because Congress has
authorized the U.S. Army Corps of Engineers to pass in the first instance on the jurisdictional
determination plaintiffs dispute, this court may not preempt that role. It is not "tolerable . . . that
declaratory judgments . . . [be used to] forestall proceedings by the . . . agenc[y] that [is]
authorized to try and decide . . . an issue in the first instance. Responsibility for effective
functioning of the administrative process cannot be thus transferred from the bodies in which
Congress has placed it to the courts." Wycoff, 344 U.S. at 246 (internal citations omitted).
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Accordingly, this court will not preempt the role of the agency to interpret the New Rule in the
first instance.
Finally, plaintiffs have filed a motion in which they seek to conduct discovery regarding
how they anticipate the New Rule will be interpreted and implemented. In light of the foregoing
analysis, the motion is moot. Accordingly,
IT IS HEREBY ORDERED that plaintiff's Motion for Declaratory Judgment and
Injunction (Rec. Doc. 50) is DENIED;
IT IS FURTHER ORDERED that plaintiff's Motion Requesting the Court to Allow
Limited Supplemental Discovery (Rec. Doc. 46) is DENIED.
18th
New Orleans, Louisiana, this _____ day of August, 2020.
____________________________________
MARY ANN VIAL LEMMON
UNITED STATES DISTRICT JUDGE
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