John McClung v. Colonel Courtney Paul, 788 F.3d 822

Background

John and Kim McClung bought lakefront property adjacent to federal land at Greers Ferry Lake and obtained a nontransferable Corps shoreline-use permit (dock and stone steps) in 2012.
Corps regulations and the Greers Ferry Shoreline Management Plan (SMP) restrict vegetation modification and prohibit chemical treatment of federal shoreline without permission; the McClungs had a limited "mowing" permit for vegetation alteration within 100 feet of their residence.
Ranger Ivy discovered 8,400 sq. ft. of shoreline vegetation killed by herbicide in June 2012 on federal land outside the McClungs' permitted area; Corps determined this violated permit conditions and the SMP.
After an initial sanction (two-year dock restriction and termination of steps), Corps staff later discovered that the McClungs had cleared remaining vegetation from the same area (Jan. 2013). The Corps revoked the consolidated permit in April 2013 for repeated violations.
The McClungs sought administrative review, then sued under the Administrative Procedure Act alleging the revocation was arbitrary and capricious and violated due process; the district court denied relief and refused to supplement the administrative record; the Eighth Circuit affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court erred by denying supplementation of the administrative record	McClung: record incomplete (no hearing transcript), Masset statements show bias, need more evidence of prior sanctioning	Corps: record contains sufficient documentation (decision letters, memos, photos); no proof of bad faith; informal hearing need not be transcribed	Denied: no abuse of discretion; record adequate to explain decision; no strong showing of bad faith or improper behavior
Whether revocation was arbitrary and capricious under APA	McClung: Corps lacked evidence of second violation (mowing vs. hand removal); considered improper factors (deterrence); failed to weigh SMP environmental goals; sanctions disproportionate	Corps: term "mow" used broadly; record shows removal of vegetation outside permitted area twice; deterrence and public-interest considerations permissible; sanction within agency discretion	Denied: record supports findings of two violations; agency considered relevant factors; sanction not arbitrary given two violations and agency discretion
Whether NEPA required an environmental impact statement before revocation	McClung: revocation could have environmental consequences (removal of steps causing erosion) so NEPA compliance required	Corps: revocation is not a "major federal action" requiring NEPA analysis	Denied: no evidence revocation was a major federal action triggering NEPA
Whether revocation violated constitutional due process or 5 U.S.C. § 558(c) notice requirements	McClung: lacked proper notice/opportunity and had property interest in permit	Corps: permits confer no property or exclusive rights; Corps has discretion to revoke; § 558(c) not raised below	Denied: § 558(c) waived on appeal; no protected property interest in permit, so no due process violation

Key Cases Cited

Voyageurs Nat'l Park Ass'n v. Norton, 381 F.3d 759 (8th Cir. 2004) (standard for supplementing administrative record; strong showing of bad faith required)
Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review framework)
Friends of the Norbeck v. U.S. Forest Serv., 661 F.3d 969 (8th Cir. 2011) (de novo review scope under APA)
Butz v. Glover Livestock Comm'n Co., Inc., 411 U.S. 182 (U.S. 1973) (agency sanction decisions entitled to substantial deference)
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (U.S. 1972) (property-interest requirement for due process claims)
Rochling v. Dep't of Veterans Affairs, 725 F.3d 927 (8th Cir. 2013) (no due process violation where no protected property interest)
Syverson v. U.S. Dep't of Agric., 601 F.3d 793 (8th Cir. 2010) (issues not raised below generally waived on appeal)