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Hodgkins v. United States Army Corps of Engineers

United States District Court, W.D. Kentucky, Louisville Division

September 26, 2019

UNITED STATES ARMY CORPS OF ENGINEERS and TIMOTHY C. FUDGE, in His Official Capacity as Chief, Operations Division, U.S. Army Corps of Engineers, Louisville District, Defendants.


          DAVID J. HALE, JUDGE

         The United States Army Corps of Engineers notified Walter and Dorothy Hodgkins that their permit to mow vegetation on federally owned land was rendered void when they transferred their property to Plaintiff Julie Maria Hodgkins. Tim and Julie Maria dispute the USACE’s determination. After a series of formal and informal appeals to the USACE, Tim and Julie Maria filed this action seeking a declaratory judgment either renewing the preexisting permit or issuing a new one. (Docket No. 1). The United States has moved to dismiss this claim under Rule 12(b)(6), arguing that Tim and Julie Maria have failed to state a plausible claim for relief. (D.N. 8) The Court agrees and will therefore grant the government’s motion to dismiss.


         Walter and Dorothy Hodgkins held a permit to mow vegetation growing along the shore of Rough River Lake that abutted their property, lots 21 and 22 of Brown’s Hide-A-Way. (D.N. 8-7) That shore is owned by the United States and managed by the USACE under the auspices of the Shoreline Management Plan (SMP). 16 U.S.C. § 460d. The USACE issued Walter and Dorothy’s permit before the 1994 edition of the SMP changed the regulations surrounding mowing permits, but it was “grandfathered” in under the previous guidelines. (D.N. 8-2, PageID # 91) The USACE conditioned the grandfathering on the following: “Permits that were in effect as of 31 May 1994 . . . . will be grandfathered as to size and configuration for the lifetime of the permit holder or his/her spouse. . . . Upon the sale or transfer of the adjacent property, the permit shall be null and void.” (Id.)

         Walter and Dorothy deeded lot 22 to their granddaughter, Julie Maria Hodgkins, on December 10, 2010. (D.N. 8-8) Tim Hodgkins, Walter and Dorothy’s son and successor in interest to lot 21, then wrote a letter to Diane Stratton, the park manager, requesting a renewal of the mowing permit for lot 22 despite the property transfer. (D.N. 8-10) Stratton replied on February 15, 2012, stating that “[a]t this time lot 22 of [B]rowns Hideaway has no mowing permit, ” citing the 2010 SMP as her basis for finding the permit “null and void.” (D.N. 8-11) The Hodgkinses filed an affidavit with the USACE on July 3, 2012, asserting that the property had actually passed from Walter and Dorothy to Tim and Julie Maria by “gift” in 1994, although the family did not record a deed memorializing this alleged transfer. (D.N 8-12) The USACE responded, stating that the agency only considers recorded property transfers when it determines the ongoing validity of permits and upholding the previous determination of nullity. (D.N. 8-13 “The corps can only base this decision on the legal instrument, the deed, not on a statement of intent.”) Tim then filed another letter with a different USACE official raising the same arguments (D.N. 8-14), and Operations Division Chief Rick Morgan responded on September 24, 2012, reiterating that the transfer to Julie Maria rendered “the permit null and void, and a new permit must be issued.” (D.N. 8-15)

         On July 26, 2016, a park officer cited and fined Tim for mowing the contested strip of shoreline; Tim admitted to “knowingly mowing the area.” (D.N. 8-16) On December 28, 2017, Eugene Dowell, Operations Division Chief, wrote a memorandum to Stratton indicating that he recommended reinstatement of the grandfathered permit. (D.N 1-1) The USACE issued another letter denying Tim’s request for revitalization of Walter and Dorothy’s permit on June 4, 2018. (D.N. 8-17) Now represented by counsel, Tim again urged the USACE to reinstate the grandfathered permit (D.N. 8-18, PageID # 209), and was again denied. (D.N. 8-19) Throughout the correspondence between Tim and various USACE officials, the agency repeatedly informed him that as the “new property owner” either he or Julie Maria was eligible to apply for a new permit that complied with the most recent version of the SMP. (D.N. 8-11, 8-13, 8-15, 8-17) The record is devoid of any indication that any member of the Hodgkins family applied for a new permit in accordance with this advice.

         Tim and Julie Maria filed this action on August 21, 2018, seeking a declaratory judgment either issuing them a new permit or renewing the grandfathered permit. (D.N. 1, PageID # 3) The United States moves to dismiss under Rule 12(b)(6), asserting that Tim and Julie Maria have failed to state a plausible claim for relief under the Administrative Procedure Act, 5 U.S.C. § 704, because, primarily, their claim is time-barred. (D.N. 8-1, PageID # 30)


         A. Pleadings

         At the outset, the Court recognizes that when ruling on a motion to dismiss, it may consider “only matters properly a part of the complaint or pleadings.” Armengau v. Cline, 7 Fed.App’x 336, 343 (6th Cir. 2001). Once “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided under Rule 56.” Fed.R.Civ.P. 12(b). However, the Sixth Circuit has taken a “liberal view of what matters fall within the pleadings”: if a document is “referred to in a complaint and central to the claim, documents attached to a motion to dismiss” may be considered. Id. (citing Jackson v. City of Columbus, 194 F.3d 737, 745 (6th Cir. 1999)). Courts may also consider “public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies” at this stage. Id; see Williams v. Porter Bancorp., Inc., 41 F.Supp.3d 676, 680 (W.D. Ky. 2014) (taking judicial notice of public record without converting motion to dismiss to motion for summary judgment).

         The United States attached eighteen exhibits to its motion to dismiss. (D.N. 8) Each attachment falls into one of the categories of documents properly considered on a motion to dismiss, either because it is central to the claims or a public record. (D.N. 8-1–8-9, 8-16) (SMPs, property transfers, citation, and permits are all public records); (D.N. 8-10–8-19) (letters between USACE and Tim that are central to the claim) The Court therefore will not convert the motion to dismiss to a motion for summary judgment. (D.N. 10, PageID # 219–21)

         B. Motion to Dismiss

         To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face if “the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Factual allegations are essential; “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice, ” and the Court need not accept such statements as true. Id. A complaint whose “well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct” does not satisfy the pleading requirements of Rule 8 and will not withstand a motion to dismiss. Id. at 679. Dismissal under Rule 12(b)(6) is appropriate if the claim is barred by the applicable statute of limitations. Conner v. U.S. Dep’t of the Army, 6 F.Supp. 3d, 717, 722 (W.D. Ky. 2014).

         Judicial review under the APA is only available for “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. The well-established statute of limitations for challenging an agency decision under the APA is six years. See Friends of Tims Ford v. Tenn. Valley Auth., 585 F.3d 955, 964 (6th Cir. 2009); Sierra Club v. Slater, 120 F.3d 623, 631 (6th Cir. 1997). A “final agency action” triggers the limitations period. Sw. Williamson Cty. Cmty. Ass’n v. Slater, 173 F.3d 1033, 1036 (6th Cir. 1999). To be considered “final, ” an agency action must meet two criteria. Bennett v. Spear, 520 U.S. 154, 177–78 (1997). The challenged action must (1) “mark the consummation of the agency’s decisionmaking process, ” and (2) “determine rights and obligations of a party or cause legal consequences.” Berry v. U.S. Dep’t of Labor, 832 F.3d 627, 633 (6th Cir. 2016) (citing U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S.Ct. 1807, 1813 (2016)). Actions of a “merely tentative or interlocutory ...

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