Lewis v. USA, No. 23-30387 (5th Cir. 2023)
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The United States Court of Appeals for the Fifth Circuit decided a case regarding the regulation of two tracts of land in Livingston Parish, Louisiana. The landowners, Garry L. Lewis and G. Lewis-Louisiana, L.L.C. (collectively referred to as "Lewis"), had been contending with the United States Army Corps of Engineers (USACE) for ten years over the agency's assertion of jurisdiction over alleged "wetlands" on their property under the Clean Water Act.
The case had a complex history, involving two Supreme Court cases, three Approved Jurisdictional Determinations (AJDs), two federal court cases resulting in two remand orders, and two appeals to the Fifth Circuit. Ultimately, the Fifth Circuit held that the Supreme Court’s decision in Sackett v. EPA controlled the facts of this case and dictated that Lewis' property lacked "wetlands" that had "a continuous surface connection to bodies that are 'waters of the United States' in their own right," such that there was no clear demarcation between "waters" and wetlands. As a result, the property was not subject to federal jurisdiction.
The court noted that Lewis' property, used primarily as a pine timber plantation, was composed of two approximately twenty-acre tracts of "grass-covered, majority dry fields, with gravel logging and timber roads on two sides of each tract." Despite this, the USACE had concluded after numerous site visits that certain percentages of these tracts contained jurisdictional wetlands, thereby restricting Lewis' development plans without a federal permit.
The court rejected the government's arguments that the case was moot following the withdrawal of the 2020 AJD and that further remand was necessary for the USACE to reevaluate the jurisdictional issue. The court held that the voluntary cessation of the allegedly wrongful behavior did not moot the case as there was no reasonable expectation of non-recurrence, and remand was inappropriate as the facts and governing law made it clear that Lewis' property was not subject to federal Clean Water Act regulation.
The court ultimately vacated the judgment of the district court and remanded the case with instructions to enter judgment in favor of Lewis, confirming that the tracts in question were not "waters of the United States" under the Sackett ruling.
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