948 F.3d 317
5th Cir.2020Background
- Louisiana sued the United States (Army Corps of Engineers) alleging the Corps failed to maintain the Gulf Intracoastal Waterway (GIWW) within the dimensions authorized by Congress, resulting in encroachment onto State-owned White Lake property that lies within a 300-foot servitude held by the U.S.
- Congress authorized the Waterway at 100 feet in 1925 and expanded it to 125 feet in 1942; the State contends the Corps allowed the Waterway to expand beyond those authorized limits.
- The State amended its complaint to proceed under the Administrative Procedure Act (APA) § 702 seeking injunctive relief (removal of encroachment and restoration); it previously asserted FTCA and Tucker Act theories.
- The United States moved to dismiss under Rule 12(b)(1) on sovereign-immunity grounds, arguing no waiver of immunity because there was no discrete agency action, §704 exceptions apply, and the Tucker Act may provide an alternative remedy.
- The district court adopted the magistrate judge’s recommendation and dismissed for lack of subject-matter jurisdiction; Louisiana appealed.
- On appeal the Fifth Circuit considered (a) whether the State identified cognizable "agency action" under § 702, (b) whether the State’s injury falls within the River and Harbor Improvements Act’s "zone of interests," and (c) whether § 706(1) could compel Corps action under 33 U.S.C. § 426i.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether APA §702 waives sovereign immunity by identifying "agency action" | Corps’ longstanding failure to maintain the Waterway is a "failure to act" (agency action/inaction) | No identifiable, discrete "agency action"; claim is a programmatic challenge | No: plaintiff failed to point to discrete agency action; §702 waiver not established |
| Whether State's injury falls within the River & Harbor Improvements Act's "zone of interests" | Encroachment violates the Act's authorized width (125 ft) and thus injures a protected interest | The Act protects national commerce/defense and vessel interests, not adjacent landowners' property | No: the State's injury is outside the Act's zone of interests |
| Whether §706(1) can compel Corps action based on 33 U.S.C. §426i | §426i imposes a discrete duty to maintain/repair the Waterway and remedy shore damage | §426i merely authorizes Corps measures and places operation/maintenance on non‑federal entities; it is discretionary | No: §426i is permissive, not mandatory; §706(1) cannot compel the Corps |
| Whether the district court had jurisdiction / whether an alternative forum exists | Seeking injunctive relief in district court under APA §702; no monetary damages sought | Sovereign immunity bars suit absent waiver; Tucker Act/Court of Federal Claims may provide remedy | Affirmed dismissal for lack of subject‑matter jurisdiction (no APA waiver) |
Key Cases Cited
- Lujan v. National Wildlife Federation, 497 U.S. 871 (1990) (§702 requires identifiable "agency action" and injury within statute's "zone of interests")
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (§706(1) permits relief only where statute mandates discrete agency action)
- Vill. of Bald Head Island v. U.S. Army Corps of Eng'rs, 714 F.3d 186 (4th Cir. 2013) ("action" in APA is a circumscribed, discrete act; programmatic challenges are barred)
- Alabama‑Coushatta Tribe of Tex. v. United States, 757 F.3d 484 (5th Cir. 2014) (discussing programmatic challenges and §702 requirements)
- Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 139 S. Ct. 361 (2018) (interpretation of APA reviewability provisions; distinguished here because agency action was present in that case)