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Ellison v. Connor

ELR Citation: 29 ELR 20240
Nos. 97-30359, 98-30203, 153 F.3d 247/(5th Cir., 09/11/1998)

The court upholds the U.S. Army Corps of Engineers' decisions to deny permits that would have allowed landowners to build camp structures on their property in the Atchafalaya floodway in Louisiana. The landowners purchased their property subject to a perpetual flowage, channel, and disposal easement that was granted to the United States. The court first holds that the district court did not have subject matter jurisdiction over the Corps' permitting decision because the Corps acted as a property owner when it denied the permits. The Rivers and Harbors Act (RHA) did not govern the Corps' actions. The building restriction and permit requirement derived from an easement owned by the United States. The easement did not refer to the RHA. It also would be pointless to obtain a broad, perpetual flowage easement if the only way the Corps could prevent potential obstruction of the easement was to use regulatory permitting procedures. In addition, depending on the nature of the property, real estate permits could be required under the easement, as well as regulatory permits under the RHA or the Federal Water Pollution Control Act. Thus, the permitting decisions were committed to agency discretion by law and judicial review is precluded under the Administrative Procedure Act.

The court next holds that the district court erred when it held that it lacked jurisdiction over the landowners' due process claim for injunctive relief. Even if agency action is committed to discretion by law, judicial review of constitutional claims is still available. The court then holds that the district court correctly held that it had jurisdiction over the landowners' damage claims for due process violations under the Tucker Act. The court, however, further holds that the district court erred in holding that the landowners lacked standing to assert the due process claims for damages based on the landowners' failure to apply for the building permits. It would have been futile for the landowners to apply for permits because the Corps sent them a letter specifically stating that it would not permit the construction or placement of any structure on their land. Nevertheless, the court held that the landowners' due process claims were meritless. The landowners were not deprived of any process to which they were entitled. The court also holds that the Corps' denial of a permit for another landowner to keep his camp structure in the floodway based on its determination that the dynamic nature of the Atchafalaya Basin may require modification of the channel in the future was within its rights under the easement.

Counsel for Plaintiffs
Robert T. Jorden Jr.
Perret & Doise
600 Jefferson St., Ste. 1200, Lafayette LA 70501
(318) 261-1200

Counsel for Defendants
John Broadwell, U.S. Attorney
U.S. Attorney's Office
3201 U.S. CtHse.
300 Fannin St., Ste. 3201, Shreveport LA 71101
(318) 676-3600

Before King and Davis, JJ.