Submitted April 13, 2015.
Appeal from United States District Court for the Eastern District of Arkansas - Batesville.
For John McClung, Kim McClung, Petitioners - Appellants: Amanda Land, Melanie McClure, David W. Sterling, Cox & Sterling, North Little Rock, AR; Eric Wolfgang, Derryberry & Zips, Dallas, TX.
For Colonel Courtney W. Paul, in his official capacity as District Engineer, Little Rock District, U.S. Army Corps of Engineers, United States Department of the Army, Respondents - Appellees: Stacey E. McCord, Assistant U.S. Attorney, U.S. Attorney's Office, Little Rock, AR.
Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
MURPHY, Circuit Judge.
John and Kim McClung bought a vacation home next to Greers Ferry Lake and received a permit to maintain a boat dock and stone steps on the public land between their property and the lake. The lake and shoreline area is federal government property managed by the Army Corps of Engineers. The Corps twice sanctioned the McClungs for violating permit conditions and regulations, first for causing herbicide to be sprayed on public property and then for removing brush from the previously sprayed land. In its final sanctions order the Corps revoked the McClungs' permit for the dock and steps. The McClungs challenged this administrative decision in federal court. The district court determined that the sanctions were not arbitrary and capricious and did not violate due process. The McClungs appeal, and we affirm.
The Army Corps of Engineers manages federal water resource development projects such as Greers Ferry Lake under 16 U.S.C. § 460d, part of the 1944 Flood Control Act. Regulations governing public use of such federal water resources are found in 36 C.F.R. pt. 327. No private structure may be located on public lands or waters without a permit, and removal or alteration of public property (including vegetation) is prohibited without written permission. 36 C.F.R. § § 327.14, 327.20, 327.30(f)(1). The Corps issues permits for private shoreline use in accordance with the Shoreline Management Plan (SMP) for each project. 36 C.F.R. § § 327.19(e), 327.30(d)(2)-(3). The Corps district commander may revoke permits " when it is determined that the public interest requires such revocation or when the permittee fails to comply with terms and conditions of the permit [or] the Shoreline Management Plan." 36 C.F.R. § 327.30, app. A(3).
In 2010, the McClungs purchased a vacation property in Heber Springs, Arkansas which is adjacent to the government owned shoreline of Greers Ferry Lake. The prior owner of this property had received a permit from the Corps allowing a boat dock and a set of stone steps on the lakeshore. Such permits are nontransferable and are voided upon the sale of the property. 36 C.F.R. § 327.30(g). Before obtaining their own permit, the McClungs met with Ranger Gary Ivy in September 2011 and were informed of permit procedures and regulations. The McClungs applied for a shoreline use permit for the dock and steps, and the Corps issued such a permit on January 4, 2012.
The permit issued to the McClungs stated that one of its conditions was compliance " with all applicable provisions of 36 C.F.R., ch.3, part 327 and the Greers Ferry Shoreline Management Plan." Violation
of permit conditions may be punished by revocation of the permit. 36 C.F.R. § 327.30, app. A(3). Specific shoreline use permit conditions from 36 C.F.R. § 327.30, app. C were printed on the back, including condition 18: " No vegetation other than that prescribed in the permit will be damaged, destroyed or removed. No vegetation of any kind will be planted, other than that specifically prescribed in the permit." Sections 8-01 and 8-02 of the Greers Ferry SMP authorize permits for certain types of vegetation modification including removal of underbrush within 50-100 feet of a residence, but the use of chemicals for vegetation modification is ...