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Gardner v. U.S. Army Corps of Engineers

January 3, 2007

KEVIN GARDNER, ET AL. PLAINTIFFS
v.
U.S. ARMY CORPS OF ENGINEERS; COLONEL WALLY WALTERS, DISTRICT ENGINEER, LITTLE ROCK DISTRICT, U.S. ARMY CORPS OF ENGINEERS; THOMAS S. PARK, OPERATIONS MANAGER, GREERS FERRY PROJECT OFFICE; AND JOSEPH T. BENTON, III. DEFENDANTS



The opinion of the court was delivered by: Wm. R. Wilson, Jr. United States District Judge

ORDER

Pending is separate Defendants U.S. Army Corps of Engineers, Colonel Wally Walters, and Thomas S. Park's ("Corps") Motion to Dismiss.*fn1 Plaintiffs ("Gardners") responded,*fn2 the Corps filed a Reply,*fn3 and the Gardners filed a Surreply. The Corps asserts that this action is brought under the Administrative Procedure Act ("APA"), and that Plaintiffs have failed to exhaust their administrative remedies. Alternatively, the Corps argues that there is no final agency action.

I. Background

The Gardners filed a complaint for injunctive and declaratory relief asking that the Corps be required to issue them a permit for a private boat dock. The Gardners purchased land and applied for the permit on a flowage easement of Greers Ferry Lake. The lake shore is managed by the Corps. The previous owners of this property had already applied for and were given permission to build a dock, but their permit application was placed in suspension, pending the outcome of litigation challenging the validity of the Corps' Shoreline Management Plan. Before selling their home to the Gardners, the previous owners granted an access easement to an association of land owners in the area. These land owners are represented by Defendant Joseph Benton III ("Benton"), and also claim they are entitled to a dock permit in the same location -- in the Gardners' back yard.

Shortly after buying the property, the Gardners contacted Mr. Thomas Park ("Park"), Operations Manager of the Greers Ferry Project Office, to secure their dock permit.*fn4 Mr. Park has the authority to issue Shoreline Use Permits, such as dock permits. The Gardners also met with Mr. Bennie Rorie ("Rorie"), Natural Resource Specialist with the Corps, to confirm the site conditions for the dock.

During this application process, Rorie and Park discovered that a third-party --Benton -- had a competing claim to the water flow easement.*fn5 Based on this, the Corps refused to issue a permit to the Gardners until the easement's ownership was either voluntarily settled or settled by a court order.

In its Answer and Motion to Dismiss, the Corps alleges that: (1) the Gardners have been in a long-running land dispute over the boat dock; (2) this dispute involves a conflict over access to the water easement, and a conflict over which party filed first for a permit; (3) an administrative appeal process is available under the Greers Ferry Shoreline Management Plan; (4) the Gardners filed this lawsuit without following this process and appealing to the Division Engineer; (5) under the Shoreline Management Plan, the Corps has the most experience with managing limited shoreline resources; (6) the Gardners did not exhaust their administrative remedy and are seeking to settle a local land dispute by involving the Corps and the federal courts. In its Reply to the Gardners' Response to the Motion to Dismiss, the Corps also asserted there is no final agency action.

The Gardners counter that the administrative appeal process is futile because the Corps has not denied their permit application, but has refused to consider it -- and this is not the kind of decision that can be administratively appealed.

The Gardners have also sued Benton and have asked that he be compelled to assert any claims he may have in this action. Jurisdiction is asserted under the Declaratory Judgment Act.*fn6

II. Authority

A. Exhaustion

It is well established that a plaintiff generally must exhaust his administrative remedies before proceeding in federal court.*fn7 Exhaustion is generally required because it (1) prevents premature interference with agency processes; (2) allows the agency to function efficiently and have an opportunity to correct its own errors; (3) affords the parties and the courts the opportunity to benefit from the agency's experience and expertise; (4) allows the agency to compile a record which is adequate for judicial review; and (5) it promotes effective and efficient judicial review by ensuring that such review is of a fully developed factual record.*fn8

Exhaustion of administrative remedies is favored, but may be excused by a limited number of exceptions to the general rule.*fn9 "A party may be excused from exhausting administrative remedies if the complaint involves a legitimate constitutional claim, if exhaustion would cause irreparable harm, if further administrative procedures would be futile, or if the issues to be decided are primarily legal rather than factual."*fn10

A party that is challenging the agency action has the burden of proving that exhaustion should be excused.*fn11 The Gardners have the burden to show that they should be excused ...


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