Louisiana Can't Sure Army Corps for Waterway EncroachmentView Source
Louisiana Can’t Sue Army Corps for Waterway Encroachment
· 5th Circuit affirms immunity ruling
· Law doesn’t force Army Corps to act
By Daniel Seiden | January 21, 2020 2:19PM ET
The U.S. government is immune from Louisiana’s lawsuit accusing the Army Corps of Engineers of unlawfully allowing the Gulf Intracoastal Waterway to extend into land owned by the state, an appeals court ruled Tuesday.
Louisiana didn’t demonstrate that the U.S. waived sovereign immunity under the Administrative Procedure Act, the U.S. Court of Appeals for the Fifth Circuit affirmed.
Louisiana failed in this regard because its complaint didn’t identify specific agency action to challenge, nor did it show that the encroachment of its land falls within the zone of interests sought to be protected by the River and Harbor Improvements Act, the court said. Both are required for the federal government’s waiver of sovereign immunity under the APA to be effective, it said.
The RHIA authorized a width of 125 feet for construction of the waterway and allows the Army Corps to prevent shore damage. But it doesn’t require the Army Corps to maintain the waterway at that width, the court said.
Congress enacted the RHIA in 1925, to build the waterway from New Orleans to Galveston. Congress expanded the waterway’s width in 1942 to help transport supplies during World War II, the court said.
Louisiana contended that the Army Corps failed to properly confine the waterway and sought an injunction requiring abatement of the encroachment and restoration of property.
Judges W. Eugene Davis, Jerry E. Smith, and Gregg J. Costa joined in the decision.
Couhig Partners LLC represented Louisiana.
The case is Louisiana v. United States, 5th Cir., No. 19-30213, 1/21/20.
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