Castello et al v. Army Corps of Engineers et al

Filing 22

ORDER - IT IS ORDERED that the 15 motion of Defendants Louisiana Mid-Continent Oil and Gas Association ("LMOGA") and Louisiana Oil & Gas Association ("LOGA") to dismiss all claims of Plaintiff Freddie O. Castello, III against them for failure to state a claim is GRANTED. IT IS FURTHER ORDERED that Plaintiff's claims against LMOGA and LOGA are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan. (bwn)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
FREDDIE O. CASTELLO, III,
Plaintiff

CIVIL ACTION

VERSUS

NO. 18-4507

THE ARMY CORPS OF
ENGINEERS, ET AL.,
Defendants

SECTION: “E” (2)

ORDER AND REASONS
Before the Court is a motion to dismiss filed by Defendants Louisiana MidContinent Oil and Gas Association and Louisiana Oil & Gas Association pursuant to
Federal Rules of Civil Procedure 12(b)(6).1 The motion is opposed. 2 For the following
reasons, the motion is GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
On May 1, 2018, Plaintiff Freddie Castello, III, filed this action on behalf of himself
and the taxpayers of Louisiana against Defendants Army Corps of Engineers, Louisiana
Mid-Continent Oil and Gas Association (“LMOGA”), and Louisiana Oil & Gas Association
(“LOGA”). 3 He alleges he submitted a proposal to the Army Corps of Engineers that would
purportedly mitigate coastal erosion. 4 Plaintiff brings claims under the Administrative
Procedure Act (“APA”) and the Coastal Zone Management Act. 5 On July 24, 2018,

R. Doc. 15.
R. Doc. 20.
3 R. Doc. 1.
4 Id. at 2.
5 Id. Plaintiffs purports to brings claims under “Environmental Quality Title 33 (294),” “Abandonment of
the Site 1104,” “Fee System 1309,” and “Technical Analysis. Id. (capitalization omitted). This Court cannot
ascertain the legal basis for these claims.
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Defendants LMOGA and LOGA filed a motion to dismiss Plaintiff’s claims with respect to
them for failure to state a claim. 6 Plaintiff filed an opposition on August 15, 2018. 7
STANDARD OF LAW
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court may dismiss
a complaint, or any part of it, for failure to state a claim upon which relief may be granted
if the plaintiff has not set forth factual allegations in support of his claim that would entitle
him to relief. 8 “To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 9 “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.” 10
However, the court does not accept as true legal conclusions or mere conclusory
statements, 11 and “conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” 12 “[T]hreadbare recitals of
elements of a cause of action, supported by mere conclusory statements” or “naked
assertion[s] devoid of further factual enhancement” are not sufficient. 13
In summary, “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” 14 “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not

R. Doc. 15.
R. Doc. 20.
8 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.
2007).
9 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).
10 Id.
11 Id.
12 S. Christian Leadership Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001) (citing Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)).
13 Iqbal, 556 U.S. at 663, 678 (citations omitted).
14 Twombly, 550 U.S. at 555.
6
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‘show[n]’—that the pleader is entitled to relief.” 15 “Dismissal is appropriate when the
complaint ‘on its face show[s] a bar to relief.’” 16
LAW AND ANALYSIS
Plaintiff brings claims against LOGA and LMOGA pursuant to the APA. 17 The APA
authorizes judicial review of actions by federal agencies. 18 It does not authorize suit
against nonfederal entities. 19 In his complaint, Plaintiff does not assert LOGA and
LMOGA are federal agencies subject to the APA. Defendants assert they are registered
with the Louisiana Secretary of State as Louisiana non-profit corporations. 20
Plaintiff has failed to set forth factual allegations that would entitle him to relief
under the APA. None of the facts alleged allow this Court to draw the reasonable inference
Defendants are federal agencies subject to the APA. As a result, Plaintiff’s cause of action
under the Administrative Procedure Act must be dismissed.
Plaintiff also brings claims against LOGA and LMOGA pursuant to the Coastal
Zone Management Act. The Coastal Zone Management Act creates a framework for states
to develop and implement coastal-zone management programs to protect ecological
resources. 21 The Act does not create a private right of action. 22 Plaintiff does not argue he
has a right of action under the Act, and he alleges no facts that would allow this Court to

Id. (quoting Fed. R. Civ. P. 8(a)(2)).
Cutrer v. McMillan, 308 F. App’x 819, 820 (5th Cir. 2009) (per curiam) (unpublished) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
17 R. Doc. 51.
18 5 U.S.C. §§ 701(b)(1); 702.
19 Friends of Lydia Ann Channel v. United States Army Corps of Engineers, 701 F. App’x 352, 358 (5th Cir.
2017) (“[I]t is well settled that suits under the APA may not be pursued against nonfederal entities.”)
20 R. Doc. 15-1 at 4.
21 16 U.S.C. § 1451 et seq.
22 See Coastal Habitat All. v. Patterson, 385 F. App'x 358, 360 (5th Cir. 2010) (“As the duties outlined in
the [Coastal Zone Management] Act are directed primarily at the Secretary [of the Interior], we do not find
. . . [it] giv[es] rise to a private-party preemptive “procedural right” of enforcement.”).
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infer that he has such a right. As a result, Plaintiff’s cause of action under the Coastal Zone
Management Act must be dismissed.
The Court notes Plaintiff does not mention Defendants LOGA and LMOGA in his
statement of jurisdiction and prayer for relief. Nowhere in his complaint does he state any
factual allegation of any action or conduct by LOGA or LMOGA or any harm he has
suffered because of LOGA or LMOGA. As a result, Plaintiff has failed to assert factual
allegations that would entitle him to any relief against LOGA or LMOGA. Any remaining
cause of action Plaintiff asserts must be dismissed.
CONCLUSION
IT IS ORDERED that the motion of Defendants Louisiana Mid-Continent Oil and
Gas Association (“LMOGA”) and Louisiana Oil & Gas Association (“LOGA”) to dismiss all
claims of Plaintiff Freddie O. Castello, III against them for failure to state a claim is
GRANTED. 23
IT IS FURTHER ORDERED that Plaintiff’s claims against LMOGA and LOGA
are DISMISSED WITH PREJUDICE.
New Orleans, Louisiana, this 23rd day of August, 2018.
_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

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R. Doc. 15.
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