United States v. Thomas Lipar
665 F. App'x 322
| 5th Cir. | 2016Background
- Developers Thomas Lipar and Jesse Valeriano (Lipar) developed two parcels near Houston (Lake Windcrest and Benders Landing); EPA investigated alleged Clean Water Act (CWA) discharges and issued cease-and-desist orders.
- DOJ sued in 2010 alleging CWA violations for discharging fill/dredged material into “waters of the United States” and for violating EPA orders.
- The district court imposed broad discovery limitations, ordered full production by the government, and barred EPA site visits.
- Lipar moved for sanctions and summary judgment; the government did not file a cross-motion. The district court granted summary judgment to Lipar on the WOTUS question in an 8‑page opinion and awarded attorneys’ fees against the government.
- The Fifth Circuit found the district court’s WOTUS analysis conclusory, lacked record citations, failed to apply or distinguish competing tests from Rapanos, and did not analyze each tract/streambed with the detailed record evidence.
- The Fifth Circuit reversed and remanded for clarification on the basis of the summary-judgment ruling, declined to predecide site-inspection discretion, and dismissed Lipar’s cross-appeal of fees as unripe.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether district court correctly granted summary judgment that the seven tracts and alleged streambed are not “waters of the United States” | Government: the tracts/streambed meet WOTUS under Rapanos tests (including Kennedy’s nexus/relatively permanent flow concept); record evidence raises disputed facts | Lipar: the properties are not WOTUS under Rapanos or any plausible test; no material dispute | Reversed and remanded — district court’s opinion insufficiently reasoned and failed to apply competing legal tests or analyze each tract with record evidence |
| Whether district court abused discretion by denying government site inspections for experts | Government: site visits necessary to develop evidence for trial and opposition to summary judgment | Lipar: site visits were unnecessary and foreclosed by court orders | Not decided on appeal — remanded so district court may reconsider in light of clarified ruling |
| Whether appeal of attorney-fees award is ripe | Lipar: fee award is final and immediately appealable | Government: fee award not reduced to a sum certain; district court may later adjust after merits review | Cross-appeal dismissed as unripe; fees appeal premature |
| Whether appellate court can perform review given district court’s terse opinion | Government: record contains extensive technical evidence requiring fact-specific analysis; district court’s concise ruling prevents meaningful review | Lipar: succinct opinion adequate to dispose of claims | Fifth Circuit: district court failed to articulate basis of ruling; remand required for clarification |
Key Cases Cited
- Rapanos v. United States, 547 U.S. 715 (2006) (Supreme Court split on definition of “waters of the United States,” providing plurality and Kennedy concurrence tests)
- Wright v. Allstate Ins. Co., 415 F.3d 384 (5th Cir. 2005) (district court must articulate basis of its ruling for effective appellate review)
- Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379 (2008) (remand for district‑court clarification appropriate when basis of decision is unclear)
- United States ex rel. Little v. Shell Expl. & Prod. Co., [citation="602 F. App'x 959"] (5th Cir. 2015) (summary judgment review requires viewing facts in light most favorable to nonmovant)
- Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, 334 F.3d 423 (5th Cir. 2003) (attorney‑fee awards not appealable until reduced to sum certain)
- S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125 (5th Cir. 1993) (fee awards must be final and specific to be ripe for appeal)