Livingston et al v. United States of America, The et al

Filing 58

ORDER granting 35 Motion to Dismiss; denying 41 Motion for Partial Summary Judgment. Signed by Honorable David C Norton on March 31, 2016.(rweh, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
CHARLESTON DIVISION
KATHIE LIVINGSON and NATURE
ADVENTURE OUTFITTERS INC.

)
)
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
UNITED STATES FISH AND WILDLIFE
)
SERIVE, RAYE NILUS, individually and
)
in her official capacity, SARAH DAWSEY,
)
individually and in her official capacity,
)
RYAN K. WAGNER, individually and in his )
official capacity, CHIRSTOPHER CROLLEY )
d/b/a Coastal Expeditions
)
)
Defendants.
)
______________________________________ )

Civil No. 2:15-cv-00564-DCN
ORDER

The following matters are before the court on defendants Sarah Dawsey
(“Dawsey”), Raye Nilus (“Nilus”), and Ryan K. Wagner’s (“Wagner”) motion to
dismiss plaintiffs’ first cause of action, and plaintiffs’ motion for partial summary
judgment. For the reasons set forth below, the court grants defendants’ motion to
dismiss and denies plaintiffs’ motion for summary judgment.
I. BACKGROUND1
The Cape Romain National Wildlife Refuge (the “Refuge”) was created by
Congress under the Migratory Bird Conservation Act in 1932. Am. Compl. ¶ 20.
Pursuant to 16 U.S.C. § 668dd et seq., the Refuge is now administered by the
Secretary of the Interior and defendant United States Fish and Wildlife Service (the
“FWS”) as part of the National Wildlife Refuge System. Through various
1

The following facts were taken from plaintiffs’ Amended Complaint where possible.

1

acquisitions since its inception, the Refuge has grown to comprise approximately
sixty-six thousand (66,000) acres, covering twenty-two (22) miles along the South
Carolina coast. See Pls.’ Mot. Ex. A; S.C. Code Ann. § 3-3-210. One such
acquisition occurred in 1991, when the United States entered into a ninety-nine (99)
year lease with the South Carolina Budget and Control Board, acquiring the following
property for use as a national wildlife refuge:
[A]ll of the State of South Carolina’s interest in all marsh lands, sand
banks, shores, edges, lands uncovered by water at low tide, and all
waterbottoms and waters which are included within the boundaries of
the [Refuge], or which are contiguous and adjacent to the easterly
boundary and fronting on the Atlantic Ocean at mean low tide.
Pls.’ Mot. Ex. A. This grant was made subject to “existing easements for canals,
ditches, flumes, pipelines, railroads, public highways and roads, telephone, telegraph,
power transmission lines and public utilities.” Id. Notably, the South Carolina
Constitution guarantees that “[a]ll navigable waters shall forever remain public
highways.” S.C. Const. Art. XIV, § 4
Plaintiff Kathie Livingston (“Livingston”) operates a for profit business,
Nature Adventure Outfitters, Inc. (“NAO,” together with Livingston, “plaintiffs”),
which takes customers on nature tours, by kayak and otherwise, through various
locations in the South Carolina Lowcountry. Am. Compl. ¶ 1. Certain NAO tours
once passed through the waters of the Refuge, though they did not go onto Refuge
land. Id. ¶ 25. In October 2013 and again in the Spring of 2014, the Refuge manager,
Dawsey, informed plaintiffs that such tours required a Special Use Permit and were
otherwise prohibited. Id. ¶¶ 2, 3, 22; Pls.’ Mot. Exs. I, J. Dawsey’s actions were
confirmed by her supervisor, Nilus. Am. Compl. ¶¶ 5, 22. During the same time

2

period the Refuge law enforcement officer, Wagner, allegedly threatened to arrest
Livingston if she brought customers into the navigable waters of the Refuge. Id. ¶¶ 4,
23. Plaintiffs contend that this restriction was instituted by Dawsey to extend a
competitive advantage to her close friend, defendant Chris Crolley (“Crolley”), who
operates a competing tour company and holds an exclusive franchise to take
customers onto Refuge land. Id. ¶ 27.
Plaintiffs filed the instant action on February 6, 2015 and amended their
complaint on March 20, 2015. The Amended Complaint brings causes of action for:
(i) violation of due process under the Fifth Amendment of the United States
Constitution; (ii) violation of the South Carolina Unfair Trade Practices Act; and
(iii) a writ of mandamus pursuant to 28 U.S.C. § 1361, requiring all defendants to
allow free navigation of Refuge waters. Id. ¶¶ 17–48. Defendants filed the instant
motion to dismiss on August 17, 2015, seeking dismissal of plaintiff’s first cause of
action for violation of due process, as to defendants Dawsey, Wagner, and Nilus (the
“individual defendants”). Plaintiffs responded to the motion to dismiss on September
2, 2015 and filed their motion for summary judgment on their third cause of action for
a writ of mandamus on October 12, 2015. Defendants responded to the summary
judgment motion on October 29, 2015, and plaintiffs replied on November 9, 2015.
This court held a hearing on both motions on December 7, 2015. At the court’s
request, both parties provided supplemental briefing in connection with defendants’
motion to dismiss on March 28, 2016. The motions are now ripe for the court’s
review.

3

II. STANDARD
A.

Motion to Dismiss

Rule 12(c) provides, “[a]fter the pleadings are closed—but early enough not to
delay trial—a party may move for judgment on the pleadings.” Courts follow “a
fairly restrictive standard” in ruling on Rule 12(c) motions, as “hasty or imprudent
use of this summary procedure by the courts violates the policy in favor of ensuring
to each litigant a full and fair hearing on the merits of his or her claim or defense.”
5C Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1368
(3d ed. 2011). Ultimately, “a defendant may not prevail on a motion for judgment on
the pleadings if there are pleadings that, if proved, would permit recovery for the
plaintiff.” BET Plant Servs., Inc. v. W.D. Robinson Elec. Co., 941 F.Supp. 54, 55
(D.S.C. 1996).
“[A] Rule 12(c) motion for judgment on the pleadings is decided under the
same standard as a motion to dismiss under Rule 12(b)(6).” Deutsche Bank Nat’l
Trust Co. v. I.R.S., 361 F. App’x 527, 529 (4th Cir. 2010); see also Burbach Broad.
Co. v. Elkins Radio, 278 F.3d 401, 405 (4th Cir. 2002). Thus, in order to survive a
motion for judgment on the pleadings, the complaint must contain sufficient facts “to
raise a right to relief above the speculative level” and “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
In reviewing the complaint, the court accepts all well-pleaded allegations as true and
construes the facts and reasonable inferences derived therefrom in the light most
favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir.
2005). “When there are well-pleaded factual allegations, a court should assume their

4

veracity and then determine whether they plausibly give rise to an entitlement to
relief.” Ashcroft v. Iqbal, 556 U.S. 662 (2009).
B.

Summary Judgment

Summary judgment shall be granted “if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine dispute
as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). “By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247–48 (1986). “Only disputes over facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary
judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a
material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the
judge’s function is not himself to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.” Id. at 249. The
court should view the evidence in the light most favorable to the non-moving party
and draw all inferences in its favor. Id. at 255.

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III. DISCUSSION
A.

Summary Judgment2

Plaintiffs ask the court to grant summary judgment as to their third cause of
action for a writ of mandamus pursuant to 28 U.S.C. § 1361, preventing defendants
from interfering with plaintiffs’ right to freely navigate the navigable waters located
within the Refuge. Pls.’ Mot. 2. Defendants argue that the contours of plaintiffs’
right are not as absolute as plaintiffs suggest, and that genuine issues of fact remain as
to whether their regulation of plaintiffs’ activity was valid. Defs.’ Response 13.
“To establish the conditions necessary for issuance of a writ of mandamus, the
party seeking the writ must demonstrate that (1) he has a clear and indisputable right
to the relief sought; (2) the responding party has a clear duty to do the specific act
requested; (3) the act requested is an official act or duty; (4) there are no other
adequate means to attain the relief he desires; and (5) the issuance of the writ will
effect right and justice in the circumstances.” U.S. ex rel. Rahman v. Oncology
Associates, P.C., 198 F.3d 502, 511 (4th Cir. 1999).
Plaintiffs argue that they have a clear right to relief rooted in Article XIV,
Section 4 of the South Carolina Constitution, which states that “[a]ll navigable waters
shall forever remain public highways free to the citizens of the State and the United
States without tax, impost or toll imposed.” The Supreme Court of South Carolina
has described this guarantee as “a property right of great value,” which can be used
for both commercial and recreational purposes. State v. Columbia Water Power Co.,
2

In most circumstances, the court would first address the motion to dismiss, and then the
motion for summary judgment. However, in this case, plaintiffs’ motion for summary judgment
presents a pure question of law, which bears on the somewhat more complicated motion to dismiss.
Therefore, the court will depart from the usual order and address the motion for summary judgment
before the motion to dismiss.

6

63 S.E. 884, 888–90 (S.C. 1909); see also Brownlee v. S.C. Dep’t of Health & Envtl.
Control, 676 S.E.2d 116, 121 (S.C. 2009) (citing Columbia Water Power Co. and
reaffirming that water is “navigable” based on its capacity for commercial or
recreational use). Plaintiffs contend these rights were preserved under the 1991 lease
which provides that the FWS’s interest would remain subject to “existing easements
for . . . public highways.”3 Pls.’ Mot. Ex. A. Plaintiffs further contend that, because
the FWS’s only interest in the Refuge is derived from the lease, the FWS lacks the
authority to interfere with the navigation of Refuge waters. Id. at 8–15. Thus,
plaintiffs’ argue, they possess a clear right to navigate Refuge waters and defendants
have a plainly defined peremptory duty not to interfere with that right.4 Id. at 16–19.
Plaintiffs’ argument rests on the mistaken assumption that no possible state of
facts exists in which the FWS could validly prohibit plaintiffs from conducting tours
of the Refuge waters.5 However, the lease is not the only source of the FWS’s
authority to regulate the Refuge. The Property Clause of the United States
Constitution grants Congress the “[p]ower to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to the United
States.” U.S. Const. art. IV, § 3, cl. 2. Congress tasked the FWS with the
administration and management of the National Wildlife Refuge System under the
3

Defendants do not explicitly concede this interpretation of the lease, Defs.’ Response 6 n.5,
but offer nothing to dispute it. Plaintiffs contend that this interpretation must be correct, because the
state did not even have the authority to grant an interest that would interfere with such rights. See Pls.’
Mot. Ex. A-1. Because the court finds it appropriate to deny plaintiffs’ motion regardless of how the
lease is interpreted, it will assume plaintiff is correct for the purposes of this motion.
4
Plaintiffs also argue that the opportunity to apply for a permit to conduct tours does not
constitute “other adequate means” to attain their desired relief. Pls.’ Mot. 19–20. Because the court
finds that plaintiffs do not have a clear and indisputable right to the relief sought, the court does not
address this issue.
5
Plaintiffs do not contend that Congress lacks the power to regulate, or delegate the regulation
of, Refuge waters. Rather, they contend that, due to the particular nature of the FWS’s leasehold
interest, Congress has not done so here. Pls.’ Mot 13, 17.

7

National Wildlife Refuge Administration Act of 1966, as amended by the National
Wildlife Refuge System Improvement Act of 1997, 16 U.S.C. § 1688, et. seq. (the
“Refuge Act”). The mission of the Refuge Act is to regulate the National Wildlife
Refuge System for the purposes of “[conserving, managing, and restoring] fish,
wildlife, and plant resources and their habitats . . . for the benefit of present and future
generations of Americans.” 16 U.S.C. § 668dd(a)(2). Section (b)(5) of the Refuge
Act authorizes the FWS to “issue regulations to carry out the Act.” 16 U.S.C.
§ 668dd(b)(5).
Pursuant to this authority, the FWS promulgated a series of regulations found
at C.F.R. § T. 50, Ch. I, Subch. C, Pt. 25, et. seq. As a general matter, these
regulations:
apply to areas of land and water held by the United States in fee title
and to property interests in such land and water in less than fee,
including but not limited to easements. For areas held in less than fee,
the regulations . . . apply only to the extent that the property interest
held by the United States may be affected.
50 C.F.R. § 25.11. Under one such regulation, “conducting a commercial enterprise
on any national wildlife refuge is prohibited except as may be authorized by special
permit.”6 50 C.F.R. § 27.97.
The plain language of §§ 25.11 and 27.97 indicates that for profit tours
conducted on Refuge waters fall within the scope of the FWS’s regulatory authority.
With respect to § 25.11, the tours in question occur on waters held in “less than fee”

6

Plaintiff makes much of the fact that nothing in the Refuge specific regulations found at 50
C.F.R. § 32.60 touches on the activity at issue in this case. Pl.’s Mot. 5. However, these Refuge
specific regulations deal with limited hunting and fishing issues. See 50 C.F.R. § 32.60 (setting forth
regulations after stating that “the following refuge units have been opened for hunting and/or fishing”).
It is clear that such Refuge specific regulations do not lessen the force of the generally applicable
regulations outlined above.

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and may therefore be regulated to the extent they “affect” the FWS’s leasehold
interest in such waters. See 50 C.F.R. § 25.11 (“For areas held in less than fee, the
regulations in this subchapter apply only to the extent that the property interest held
by the United States may be affected.”). Plaintiffs have not shown, and common
sense does not suggest, that their tours, which are conducted in the very location of
the FWS’s leasehold interest, cannot possibly affect that interest.
To the extent plaintiffs contend that their tours are not conducted “on” Refuge
waters within the meaning of § 27.97 because they fall within the easement reserved
under the lease, this argument is unavailing. Pls.’ Mot. 9–10; Pls.’ Reply 7–8. As an
initial matter, plaintiffs appear to misunderstand the very nature of their own interest
in the Refuge waters. Simply because one holds an easement over another’s property
interest, it does not follow that one is not “on” another’s property when exercising
rights under said easement. Easements simply allow one person to use the property
of another; they do not somehow change the essential character of that property when
they are exercised. Windham v. Riddle, 672 S.E.2d 578, 582 (S.C. 2009) (“An
easement is a right which one person has to use the land of another for a specific
purpose, and gives no title to the land on which the servitude is imposed.” (quoting
Douglas v. Med. Investors, Inc., 182 S.E.2d 720, 722 (S.C. 1971))); EASEMENT,
Black’s Law Dictionary (10th ed. 2014) (“[A]n interest in land owned by another
person, consisting in the right to use or control the land, or an area above or below it,
for a specific limited purpose.”). Because the lease granted the FWS an interest in the
“waters which are included within the boundaries of the [Refuge],” plaintiffs are
clearly “on” Refuge waters when they exercise their rights under the easement. Pls.’

9

Mot Ex. A. Thus, recognizing the existence of plaintiffs’ easement rights does not
invalidate the FWS’s regulatory authority, because plaintiffs come within the scope of
§§ 25.11 and 27.97 when exercising such rights.
Even assuming that plaintiffs are not considered to be “on” Refuge waters
when navigating such waters within the scope of their easement, prior case law
demonstrates that they are nevertheless subject to the FWS’s regulatory authority. It
is undisputed that the Property Clause grants the federal government the power to
“regulate conduct on non-federal land ‘when reasonably necessary to protect adjacent
federal property or navigable waters.’” McGrail & Rowley, Inc. v. Babbitt, 986 F.
Supp. 1386, 1394 (S.D. Fla. 1997) aff’d sub nom. McGrail & Rowley, Inc. v. U.S.
Dep’t of Interior, 226 F.3d 646 (11th Cir. 2000) (quoting United States v. Lindsey,
595 F.2d 5, 6 (9th Cir. 1979)) see also State of Minn. by Alexander v. Block, 660
F.2d 1240, 1249 (8th Cir. 1981) (“Under [its] authority to protect public land,
Congress’ power must extend to regulation of conduct on or off the public land that
would threaten the designated purpose of federal lands.”).
In Babbitt, the court addressed the FWS’s authority under 50 C.F.R.
§ 27.97—the same regulation at issue here—to prohibit an operator of for-profit tours
from carrying passengers to an federally owned island within the Key West National
Wildlife Refuge. See Babbitt, 986 F. Supp. 1394–95. After discussing the federal
government’s power to regulate activities occurring on non-federal property, the court
confirmed that the FWS could properly prohibit the tours in question. Id. This
conclusion is supported by other cases in which courts have found that federal
authorities have the power to regulate activity on non-federal property which

10

threatened federal interests in federal land. See Free Enter. Canoe Renters Ass’n of
Mo. v. Watt, 711 F.2d 852, 856 (8th Cir. 1983) (upholding a prohibition on the
delivery and retrieval of rented watercraft without a permit “within the boundaries of
the Ozark National Scenic Riverways,” and finding that the phrase “within the
boundaries” properly included state and country roads within such boundaries);
Block, 660 F.2d at 1249–51 (affirming statutory prohibitions on the use of motorboats
and snowmobiles in an area containing predominately, but not exclusively, federal
land); Lindsey, 595 F.2d at 6 (upholding prohibition against camping and campfires
on riverbed outside of, but adjacent to, federal land).
Plaintiffs attempt to distinguish Babbitt on the fact that the plaintiff in that
case was actually bringing passengers onto federal property. Pls.’ Reply 5–6.
However, a close examination of the opinion reveals that this was not a necessary
predicate to the FWS’s regulatory authority. It is true that the Babbitt court
“express[ed] no opinion” on whether a state statute divested a state regulatory board
of the authority to “regulate commerce and the operation of vessels through stateowned waters.” Babbitt, 986 F. Supp. at 1394. Because the FWS managed the Key
West National Wildlife Refuge in accordance with an agreement and management
plan between the FWS and the state regulatory board, the Babbitt plaintiff theorized
that the FWS’s regulatory authority could not exceed the Board’s. Id. The court
clarified that, whatever the boundaries of the Board’s authority may have been, they
had no bearing on the FWS’s independent authority to regulate federal lands. Id.
In analyzing the FWS’s authority to regulate federal lands, the court noted that
“[t]he agency plainly has the power to regulate conduct ‘on or off the public land that

11

would threaten the designated purpose of federal lands.’” Id. at 1395 (quoting Block,
660 F.2d at 1249)). The court went on to find that “there [was] sufficient evidence in
the record . . . to corroborate the [FWS’s] determination that regulation of the waters
surrounding the refuge islands is necessary to preserve their wilderness character.”
Id. at 1395 n.5. This language would be both unnecessary and confusing if the court
intended to hold that the FWS’s regulatory authority was entirely dependent on the
fact that the tours carried passengers onto the islands. Id. Thus, the court’s ruling
was ultimately premised on a finding that the regulated activity had the potential to
impact the federal property. Of course, the fact that the passengers were being taken
directly onto federal land supported such a finding, but it by no means follows that it
was a necessary component of the Babbitt court’s holding.
Plaintiffs also argue that the authority to restrict navigation of Refuge waters
lies solely with the Secretary of the Army under 33 U.S.C. § 1, because it was never
specifically delegated to the FWS. Pls.’ Mot. 11–12. Plaintiffs’ only support for this
proposition is 33 U.S.C. § 1, which provides that:
It shall be the duty of the Secretary of the Army to prescribe such
regulations for the use, administration, and navigation of the navigable
waters of the United States . . . covering all matters not specifically
delegated by law to some other executive department.
33 U.S.C. § 1 (emphasis added). Plaintiff’s interpretation of 33 U.S.C. § 1 finds no
support in the relevant case law. As discussed above, the Babbitt court determined
that the FWS had the authority to regulate navigable waters without any discussion of
whether that power was “specifically delegated.” See Babbitt, 986 F. Supp. at 1394–
95. Moreover, the Refuge Act specifically states that it was enacted for the purpose
of consolidating the authorities relating to “all lands, waters, and interests” within the
12

Refuge System. 16 U.S.C.A. § 668dd. It would be absurd to find that this delegation
of authority did not include navigable waters, simply because it did not explicitly use
the word “navigable.”
Because defendants’ regulatory authority extends to activities that affect
federal property, it is at least possible that defendants’ regulation of plaintiffs’ tours
was valid, even if one accepts plaintiffs’ argument that their tours were not conducted
“on” federal property. See Babbitt, 986 F. Supp. at 1394–95; 50 C.F.R. § 25.11.
Plaintiffs note that this means it is possible for the FWS to regulate a whole host of
activities occurring outside the Refuge7 and argue that the law cannot have placed
“such arbitrary and abusive power into the hands of” the FWS. Pls.’ Reply 6.
Plaintiffs are correct in concluding that the law has not granted the FWS with
“arbitrary and abusive power,” but this is not because the FWS’s regulatory power is
strictly constrained by the physical boundaries of federal property. Rather, the FWS
is constrained by the requirement that the regulation of non-federal property must be
“reasonably necessary” to protect the Refuge. See Babbitt, 986 F. Supp. at 1394
(“[T]he federal government has authority to regulate conduct on non-federal land
‘when reasonably necessary to protect adjacent federal property or navigable
waters.’” (quoting Lindsey, 595 F.2d at 6)). Though this limitation may elude precise
definition, this flexibility is entirely appropriate to address the various and complex
environmental threats facing the species and habitats within the Refuge System. At
7

Plaintiffs also contend that defendants’ argument is inconsistent: on one hand, defendants
recognize that they lack the power to regulate commercial fishing or shell fishing, but on the other,
they contend that they can regulate plaintiffs’ navigation of the Refuge waters, though both are
protected under the lease. Pls.’ Reply 3. However, the power to regulate commercial fishing was
reserved through a separate clause which spoke directly in terms of regulatory authority, not property
interests. See Pls.’ Mot. Ex A. Because plaintiffs claim defendants’ regulatory authority was
constrained by solely their property rights, the court finds the above analysis applicable regardless of
how that analysis might change if applied to the regulation of commercial fishing or shell fishing.

13

this juncture, limited discovery has occurred and the court is in no position to assess
the substantive merits of defendants’ decision to impose the regulation at issue.
Therefore, the court denies plaintiffs’ motion for summary judgment.
B.

Motion to Dismiss

In their motion to dismiss, the individual defendants ask the court to dismiss
plaintiffs’ first cause of action against them for violation of plaintiffs’ Fifth
Amendment Constitutional right to due process.8 Defs.’ Mot. 2. The individual
defendants argue that they are entitled to protection under the defense of qualified
immunity.9 Plaintiffs claim that the individual defendants are not entitled to qualified
immunity because they clearly acted outside of the scope of their regulatory authority
and because their actions were motivated by an impermissible desire to harm
plaintiffs’ business. Pls.’ Resp. 9–13.
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388 (1971), the Supreme Court provided for “a direct cause of action under the
Constitution of the United States against federal officials for the violation of federal
constitutional rights.” Pronin v. Duffey, No. 5:13-cv-3423, 2014 WL 2881149, at *3
(D.S.C. June 24, 2014). A Bivens claim is analogous to a claim under 42 U.S.C.

8

The individual defendants expressed some initial confusion over whether plaintiffs claim is
based on their procedural or substantive due process rights. Defs.’ Mot. 3 n.3. While defendants’
confusion was not wholly unjustified, plaintiffs’ pleadings and briefs are best understood as alleging a
breach of their substantive due process rights. See Am. Compl. ¶ 24 (directly addressing plaintiffs’
“rights to freely navigate public navigable waters”); Pls.’ Response 7 (same); see also Am. Compl. ¶
31 (alleging that “[d]efendants’ action have stripped from Plaintiffs a substantial and substantive legal
right . . . without legal process or due process of law”). Neither parties’ pleadings, briefs, or oral
arguments discussed any issue of procedural process with any detail. Thus, it has become sufficiently
clear that plaintiffs are proceeding on a theory of substantive due process.
9
The individual defendants also argue they must be dismissed from the suit entirely to the
extent plaintiffs bring claims against them in their official capacity. Defs.’ Mot. 2. At the hearing,
plaintiffs’ counsel conceded that there are no claims being brought against the motion defendants in
their official capacities. Therefore, the court grants this component of the individual defendants’
motion.

14

§ 1983, which applies to constitutional violations by persons acting under the color of
state law.10 Id.
Under the qualified immunity defense, federal officials are immune from suit
under a Bivens claim, unless the court determines that: “(1) [] the facts alleged, taken
in the light most favorable to the plaintiff, show that the defendants’ conduct violated
a constitutional right, and (2) [] that right was clearly established at the time of the
alleged misconduct.” Odom v. U.S., No. 5:13-cv-01231, 2014 WL 1234176, at *10
(D.S.C. Mar. 25, 2014) (citing Pearson v. Callahan, 555 U.S. 223, 232 (2009)). “In
determining whether the right violated was clearly established, the court defines the
right ‘in light of the specific context of the case, not as a broad general proposition.’”
Id. (quoting Parrish v. Cleveland, 372 F.3d 294, 301 (4th Cir. 2004). “If the right was
not clearly established in the specific context of the case—that is, if it was not clear to
a reasonable officer that the conduct in which he allegedly engaged was unlawful in
the situation he confronted—then the law affords immunity from suit.” Id. (quoting
Parrish, 372 F.3d at 301). Though the court must consider the specific context of the
case, this does not mean it is necessary to show that courts have previously found the
activities in question to be unlawful. See Anderson v. Creighton, 483 U.S. 635, 640
(1987) (stating that it is not necessary to show that “the very action in question has
previously been held unlawful”). Rather, “a general constitutional rule already
identified in the decisional law may apply with obvious clarity to the specific conduct
in question, even though ‘the very action in question has [not] previously been held

10

Case law involving § 1983 claims is applicable in Bivens actions and vice versa. Pronin,
2014 WL 2881149, at *3 (citing Farmer v. Brennan, 511 U.S. 825, 833–42 (1994)).

15

unlawful.’” United States v. Lanier, 520 U.S. 259, 271 (1997) (quoting Anderson,
483 U.S. at 640).
At the outset, the court notes that plaintiffs have effectively advanced two
distinct theories to support their Bivens claim. Under the first theory, they allege that
the individual defendants are liable for simply prohibiting them from navigating the
Refuge waters without a permit. Pls.’ Resp. 7. Plaintiffs contend that the individual
defendants deprived them of their right to navigate the Refuge waters, and because
the FWS had no authority to do so, this deprivation was unlawful. Pls.’ Supp. Br. 4–
5.
Under the second theory, plaintiffs highlight their allegations that the
individual defendants restricted their navigation of the Refuge waters with the
specific intent to harm their business and benefit Dawsey’s close personal friend.11
Pls.’ Response 12. This changes the character of the claim substantially. Because an
otherwise valid administrative action “may be invalidated [by] an impermissible
secondary motive,” Hardesty v. Sacramento Metro. Air Quality Mgmt. Dist., 2012
WL 1131387, at *19 (E.D. Cal. Mar. 29, 2012), this motive-based theory does not
turn on the FWS’s regulatory authority. Regardless of whether the FWS could
regulate navigation of the Refuge waters in certain circumstances, FWS officials are
not empowered to exercise their regulatory authority in an “arbitrary or conscience
shocking” manner. Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (quoting
11

When taken in the light most favorable to plaintiffs, the pleadings indicate that Dawsey
imposed the permit requirement “in order to extend a competitive advantage to her close friend,
[Crolley] by barring all other nature tour operators.” Am. Compl. ¶ 27. Though the amended
complaint does not directly contend that Wagner and Nilus shared this intent, it does indicate that they
were “aware” of the competition between Crolley and plaintiffs, and that Crolley was granted an
exclusive franchise to conduct tours on Refuge land through their “instigation and support.” Id. ¶¶ 27,
28.

16

Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126 (1992)). Because the
court wishes to highlight at least one ground for its decision that is not uniformly
applicable to both theories, the court will address each theory in turn.
i.

“Exceeded Regulatory Authority” Theory

Plaintiffs’ initial theory is easily disposed of under the qualified immunity
analysis. As discussed above in section III.A., the court finds that plaintiffs’ right to
navigate the Refuge waters pursuant to the South Carolina Constitution does not
preclude FWS regulation of such waters. Assuming the individual defendants did not
act with an improper motive, the foregoing discussion suggests that their actions did
not violate plaintiffs’ rights at all. Even if the individual defendants did exceed their
regulatory authority, the preceding section outlines the many reasons why a
“reasonable officer” might have believed that enforcing the special permit
requirement was not unlawful. Therefore, the court finds that even if the FWS’s
regulation deprived the plaintiffs of certain property rights afforded by the South
Carolina Constitution, defendants would be entitled to qualified immunity because
those rights were not “clearly established at the time of the alleged misconduct.” See
Pearson, 555 U.S. at 232.
ii.

“Improper Motive” Theory

As for plaintiffs’ motive-based theory, there is certainly reason to think that
the individual defendants would not be entitled to qualified immunity from such a
claim on the basis of the pleadings. See Hardesty, 2012 WL 1131387, at *19 (noting
that an otherwise valid administrative action “may be invalidated [by] an
impermissible secondary motive” and denying defendants qualified immunity

17

argument in light of case law clearly establishing such a rule). Given that the “core of
the [due process] concept” is the protection against arbitrary action, Lewis, 523 U.S.
at 845, the court seriously doubts whether a “reasonable officer” could honestly
believe they were permitted to enforce regulations specifically in an effort to advance
the interests of a personal friend by harming a competitor’s business.12
Nevertheless, the court chooses not to address the qualified immunity question
under this theory, because it finds that the underlying Bivens action is not even
available.13 As stated above, the Bivens Court provided for “a direct cause of action
under the Constitution of the United States against federal officials for the violation
of federal constitutional rights.” Pronin, 2014 WL 2881149, at *3. However, the
Court has made clear that a Bivens remedy is “not an automatic entitlement” in every
instance of a constitutional violation. Wilkie v. Robbins, 551 U.S. 537, 550 (2007).
In fact, a Bivens remedy is not guaranteed even if the underlying constitutional right
at issue has provided the basis for a Bivens claim in another context. Corr. Servs.
Corp. v. Malesko, 534 U.S. 61, 78 (2001) (“[A] Bivens action alleging a violation of
12

To this point, the court notes that while Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982)
“defined the limits of qualified immunity essentially in objective terms,” this “reasonable person”
standard can still consider an official’s subjective mental state when that mental state is an essential
part of the plaintiff’s cause of action. In such cases, the “clearly established” inquiry simply asks
whether a reasonable person would have known that the defendant’s actions, when conducted with the
relevant mental state, would violate the plaintiff’s rights. This concept was explicitly recognized in
Crawford-El v. Britton, which explained that “improper motive . . . may be an essential part of a
plaintiff’s affirmative case” and that the objective standard established in Harlow was limited to the
scope of the qualified immunity defense. 523 U.S. 574, 589 (1998). Therefore, while it is certainly
possible that a reasonable person might be unaware that certain conduct, undertaken with the requisite
intent, would violate a plaintiff’s constitutional rights, that does not remove the defendant’s intent from
the analysis. On the contrary, it remains a crucial part of the analysis, as the court must then determine
whether a reasonable person would recognize the constitutional significance of such intent.
13
Because the court finds that plaintiffs’ initial theory is easily disposed of under the qualified
immunity analysis, the following discussion focuses on the availability of a Bivens action under the
second, motive-based theory. However, the court does not mean to suggest that a Bivens action is
available under the initial theory; it simply wishes to emphasize that, regardless of the availability of
Bivens claim under the initial theory, it would be barred by qualified immunity. To the extent the
following discussion applies to both theories, the court finds they are equally unavailable as Bivens
actions.

18

the Due Process Clause of the Fifth Amendment may be appropriate in some
contexts, but not in others.” (quoting F.D.I.C. v. Meyer, 510 U.S. 471, 484 n.9
(1994))). Ultimately, “any freestanding damages remedy for a claimed constitutional
violation has to represent a judgment about the best way to implement a constitutional
guarantee,” and “in most instances [the Court] [has] found a Bivens remedy
unjustified.” Wilkie, 551 U.S. at 550.
The Supreme Court outlined the framework for making such a judgment in
Wilkie v. Robbins: first, the court must determine “whether any alternative, existing
process for protecting the interest amounts to a convincing reason for the Judicial
Branch to refrain from providing a new and freestanding remedy in damages,” and in
the absence of such an alternative, “the federal courts must make the kind of remedial
determination that is appropriate for a common-law tribunal, paying particular heed[]
[] to any special factors counselling hesitation before authorizing a new kind of
federal litigation.” Id.
As to the first factor, Congress may provide for “meaningful safeguards or
remedies” that preclude the court from recognizing a Bivens remedy, even if those
protections do not provide “complete relief.” Schweiker v. Chilicky, 487 U.S. 412,
425 (1988) (finding that “Congress . . . [did] not fail[] to provide meaningful
safeguards or remedies” despite the fact that “Congress [] failed to provide for
‘complete relief’”); see also Ameur v. Gates, 759 F.3d 317, 327 (4th Cir. 2014) cert.
denied, 135 S. Ct. 1155, 190 L. Ed. 2d 916 (2015) (“We may not assume that a
constitutionally mandated remedy exists for [appellant] merely because he cannot
locate a remedy elsewhere.”).

19

In this case, 50 C.F.R. § 25.45 provides that “[a]ny person who is adversely
affected by a refuge manager’s decision or order relating to the person’s permit . . . ,
or application for permit” may seek reconsideration from the refuge manager, and if
such reconsideration is unsuccessful, may appeal to the area manager, and ultimately,
the regional director. The regional director’s decision constitutes a final agency
decision subject to judicial review under the Administrative Procedure Act (“APA”).
5 U.S.C. § 702. A number of courts have found Bivens to be unavailable where
plaintiffs had recourse to an alternative remedial scheme of this nature. See, e.g.,
Chilicky, 487 U.S. at 424 (declining to recognize Bivens where Social Security
claimants had access to reconsideration by state agency, followed by review by
federal ALJ, followed by Appeals Council administrative review, ultimately followed
by judicial review); Miller v. U.S. Dep’t of Agr. Farm Servs. Agency, 143 F.3d 1413,
1416 (11th Cir. 1998) (declining to recognize Bivens action where plaintiff had
access several levels of state agency and administrative review as well as federal
judicial review through the APA). Some courts have gone so far as to find that the
availability of APA review alone is sufficient to preclude the availability of Bivens.
W. Radio Servs. Co. v. U.S. Forest Serv., 578 F.3d 1116, 1123 (9th Cir. 2009)
(concluding “that the APA leaves no room for Bivens claims based on agency action
or inaction”); Miller, 143 F.3d at 1416 (“Under our circuit’s precedents, the existence
of a right to judicial review under the APA is, alone, sufficient to preclude a federal
employee from bringing a Bivens action.”). While the court finds it unnecessary to
adopt such an absolute rule at this time, the cases cited above strongly suggest that
plaintiffs have an adequate means of protecting their rights without a Bivens remedy.

20

Wilkie itself is instructive on this point. In Wilkie, a ranch owner brought
Bivens claims against various Bureau of Land Management (“BLM”) employees for
engaging in a campaign of harassment against him, as retaliation for the plaintiff’s
refusal to grant the BLM an easement. Wilkie, 551 U.S. at 543–47. The Court
separated the various harms inflicted by the BLM employees into four categories:
tort-like injuries, claims and charges brought against him, unfavorable agency
actions, and events eluding classification. Id. at 551–53. Though the Court
ultimately went to the second step in its analysis, it did so only because the variety of
injuries suffered by the plaintiff created a “patchwork” of forums for defense and
redress. Id. at 554. As it relates to this case, the Wilkie Court explicitly recognized
that “when the incidents are examined one by one, [the plaitniff’s] situation does not
call for creating a constitutional cause of action for want of other means of
vindication.” Id. at 555.
Here, the court is effectively faced with an isolated use of one of the harms
directed at the plaintiff in Wilkie. Plaintiffs could apply for a special permit to
conduct their tours through the Refuge, and if rejected, they would be faced with an
unfavorable agency action. In this case, plaintiffs could seek administrative review,
and ultimately, judicial review under the APA. 50 C.F.R. § 25.45; 5 U.S.C. § 702.
This basic procedure was found sufficient in Wilkie. 551 U.S. at 552 (noting that for
each unfavorable agency action “administrative review was available, subject to
ultimate judicial review under the APA”) see also W. Radio Servs. Co. v. U.S. Forest
Serv., 578 F.3d 1116, 1122 (9th Cir. 2009) (noting “that Wilkie itself gave us a strong
indication that the APA constitutes an ‘alternative, existing process’ for [] damages

21

claims based on agency actions and inactions”). Alternatively, plaintiffs might
simply conduct their tours in violation of the FWS’s permit requirement, subjecting
themselves to administrative or criminal charges. Wilkie indicates that even this
situation would not call for the recognition of a Bivens action, because plaintiffs
would still have the ability to contest their charges.14 Wilkie, 551 U.S. at 552 (“For
each charge, . . . [plaintiff] had some procedure to defend and make good on his
position. He took advantage of some opportunities, and let others pass; although he
had mixed success, he had the means to be heard.”). In either case, plaintiffs have
some means of challenging the FWS’s enforcement of the permit requirement.
Certainly, they may not have all of the same remedial tools available under Bivens,
but again, this is not required. Chilicky, 487 U.S. at 425. All that is required is an
“alternative, existing process” that provides a “convincing reason for the Judicial
Branch to refrain from providing a new and freestanding remedy in damages.”
Wilkie, 551 U.S. at 550. The Supreme Court’s decision in Wilkie and the other cases
cited above suggest that such a process is already available.
Plaintiffs argue that the court should look to Dunbar Corp. v. Lindsey, in
which the Fourth Circuit recognized a landowner-plaintiff’s Bivens claim against
certain military personnel who were involved in forcibly taking the plaintiff’s land.
905 F.2d 754, 756 (4th Cir. 1990). However, Dunbar is readily distinguishable from
the instant case, on both the law and the facts. As an initial matter, Dunbar was
decided a full seventeen years before the Supreme Court’s decision in Wilkie. While
the Dunbar court recognized that “a Bivens action is appropriate only where there are

14

This is to say nothing of the fact that under such a hypothetical, the plaintiffs would have
already foregone one avenue of relief.

22

‘[1] no special factors counselling hesitation in the absence of affirmative action by
Congress, [2] no explicit statutory prohibition against the relief sought, and [3] no
exclusive statutory alternative remedy,’” id. at 761 (quoting Chilicky, 487 U.S. at
421), the court went on to state that “the Court has not fully fleshed out these
considerations, making our task more difficult.” Id. Not only have subsequent cases
given shape to these considerations, but Wilkie announced a substantially different
formulation of the Bivens test that the one used in Dunbar. While Dunbar stated that
courts may recognize Bivens actions where there was no “explicit statutory
prohibition” or “exclusive statutory alternative remedy,” id. at 761, these preclusive
parameters were phrased much more broadly in Wilkie, which made Bivens
unavailable where there was a “alternative, existing process” that provided a
“convincing reason” not to recognize “a new freestanding remedy in damages.”
Wilkie, 551 U.S. at 550. The Wilkie formulation is clearly more restrictive,
suggesting that Dunbar’s analysis may no longer be appropriate.
Moreover, in finding that “Congress [had] not provided an adequate
alternative remedy,” the Dunbar court noted the deficiencies of the Federal Tort
Claims Act (“FTCA”). Dunbar, 905 F.2d at 762. However, the protections offered
by FTCA are not comparable to those available in this case under the APA. Unlike
the APA, the FTCA possesses a “unique deficiency” because it “[authorizes] [] only
those actions allowed by the law of the place where the act or omission occurred,”
and therefore, does not provide uniform protection throughout the country. Western
Radio Servs., 578 F.3d at 1124; see also Carlson v. Green, 446 U.S. 14, 23 (1980)
(“[A]n action under FTCA exists only if the State in which the alleged misconduct

23

occurred would permit a cause of action for that misconduct to go forward . . . . Yet it
is obvious that the liability of federal officials for violations of citizens’ constitutional
rights should be governed by uniform rules.”). The APA, on the other hand, applies
uniformly throughout the country.15 W. Radio Servs., 578 F.3d at 1124.
Most importantly, the Dunbar court distinguished itself from the Supreme
Court’s decision in Chilicky by noting that in Chilicky there was a system for
protecting the plaintiffs’ rights which enabled them “to seek two levels of
administrative review and then judicial review, including review of constitutional
claims.” Dunbar, 905 F.2d at 763. “In stark contrast,” the court found:
no comprehensive system exists to protect Dunbar’s possessory
interest in the land. Indeed, only state law provides some basis for the
vindication of Dunbar’s rights. In no way does this provide an
adequate (and certainly not an equally effective) means set up by
Congress for the protection of constitutional rights.
Id. The instant case is much more like Chilicky than Dunbar under this comparison.
Plaintiffs certainly have means other than state law to protect their rights, which
include both administrative and judicial review. Because Dunbar is distinguishable in
both its application of the law and the facts, it does not disturb the court’s conclusion
that no Bivens remedy is available in this case.

15

The Western Radio Services court also noted that while both the FTCA and APA pre-date the
Supreme Court’s decision in Bivens and were both subject to post-Bivens amendments, the
congressional comments accompanying the post-Bivens amendments to the FTCA “made it crystal
clear that Congress views FTCA and Bivens as parallel, complementary causes of action,” while there
are no similar indications of congressional intent with respect to the APA. W. Radio Servs, 578 F.3d
at 1124 (quoting Carlson v. Green, 446 U.S. at 19–20)

24

IV CONCLUSION
For the foregoing reasons, the court GRANTS the individual defendants’
motion to dismiss and DENIES plaintiffs’ motion for summary judgment.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
March 31, 2016
Charleston, South Carolina

25