8th Circuit reverses shoreline use permit revocation

Summary

• The 8th Circuit reversed the revocation of Jackie Lackie’s shoreline use permit at Greers Ferry Lake.
• The Army Corps settlement resolved “all known disputes,” including the dispute over Lackie’s boat dock permit.
• The court found the settlement agreement‘s broad language clear and unambiguous.
• The case was remanded with instructions to set aside the permit revocation as unlawful agency action.

A settlement agreement stating that it would resolve “all known disputes” included the issue of a landowner’s shoreline use permit, the 8th U.S. Circuit Court of Appeals ruled on July 13, reversing a decision to revoke the permit.

Jackie Lackie purchased property near Greers Ferry Lake in 2001. The Arkansas lake is owned by the federal government and managed by the Army Corps of Engineers, which formed the lake when construction was completed on a dam and hydroelectric power plant in 1962.

The Corps administers a shoreline management plan that governs use of the private shoreline and lake. Property owners must obtain a permit to maintain a boat dock on the lake or to modify vegetation on the public land surrounding the lake and its shoreline.

Lackie obtained a permit for a boat dock on his property when he purchased it.

In January 2022, park rangers discovered that 69 trees had been cut down on government land between Lackie’s property and the lake. The damaged trees were adjacent to Lackie’s property and the Corps inferred that Lackie had felled the trees. The Corps filed a notice of trespass against Lackie’s property in the real estate records for the county and sent Lackie a letter.

The letter stated that the destruction of trees on public land was a violation of the shoreline management plan and a federal regulation. The letter offered to settle the violations if Lackie paid the appraised value of the damaged trees, in the amount of $6,017.28.

In addition, the letter stated that the Corp was recommending that Lackie’s permit be revoked, and that if it was, Lackie would be required to remove the boat dock and would not be able to replace it because the area where his path and dock are located is no longer zoned for them.

Enclosed with the letter was a proposed settlement and memorandum agreement that included the statement: “The parties want to settle this case concerning all matters on the public lands,” and later, “All the parties agree that this agreement settles all known disputes between the Corps of engineers and the landowner, Mr. Lackie, as of the date signed.”

Lackie called a park ranger to discuss the letter and proposed settlement. He explained that he did not want to lose the dock and offered to pay double the requested amount to keep it.

A week after the phone call, Lackie dropped off the signed settlement agreement and a check. He asked if there would be any other penalties, and the ranger explained that revocation of the permit was still a possibility.

Lackie was later notified that his permit would be revoked due to violations of the conditions of the permit. He appealed and offered to donate $12,000 to sponsor a Greers Ferry Lake shoreline management awareness campaign and pay $20,000 for shoreline management and habitat creation on the lake.

The Corps rejected Lackie’s proposal and issued a final decision revoking the permit. Lackie sued, arguing that the revocation of the permit violated the terms of the settlement agreement. The district court disagreed and Lackie appealed.

Writing for the panel, Chief Circuit Judge Steven M. Colloton reversed.

Lackie argued that the Corps’s revocation of his permit was arbitrary and capricious in violation of the Administrative Procedure Act (APA) because the agreement “settles all known disputes” between the parties — including the dispute over his permit.

The government countered that the record as a whole showed that the agreement settled only the disputes regarding the criminal trespass, such as responsibility for cutting trees and the amount to be paid for damage to the landscape in lieu of prosecution.

Applying Arkansas law, the court noted that the agreement “states plainly” that the parties “want to settle this case concerning all matters on the public lands,” and that the agreement “settles all known disputes between the Corps of Engineers and the landowner, Mr. Lackie, as of the date signed.”

“The Corps does not deny that there was at the time a dispute over Lackie’s ability to retain the shoreline use permit,” the court wrote. “The project manager had informed Lackie that the Corps’s project office was recommending that the District Commander revoke Lackie’s permit. This put Lackie on notice that his permit was in jeopardy.”

Lackie then sought to retain the permit, contacted the Corps in an effort to stave off the recommended revocation and eventually sought an informal hearing before the District Commander after receiving a notice of revocation.

“That situation naturally fits the definition of a dispute — a ‘conflict or controversy’ — over Lackie’s retention of the permit,” the court said. “A straightforward reading of the agreement, therefore, manifests an objective intent of the parties to settle the dispute over Lackie’s permit.”

While the Corps pointed to the letter accompanying the agreement to argue that the parties did not intend to settle over the permit, the court found no ambiguity.

“The capacious and unqualified language of the agreement, referring to ‘all matters on the public lands’ and ‘all known disputes,’ unambiguously encompasses the dispute over Lackie’s permit,” the court found. “Context does not render the phrase ambiguous.”

Other paragraphs in the agreement address compensation to the government and Lackie’s potential liability for trespass, but they do not specify that those matters are the only subjects of the agreement, the court said.

“To the contrary, the preamble explains that the parties ‘want to settle this case concerning all matters on the public lands,” the court emphasized.

The letter explained that the project office was recommending revocation of Lackie’s shoreline use permit, but did not address show the proposed settlement agreement related to the permit.

“On that point, the agreement spoke for itself when it settled ‘all known disputes’ concerning ‘all matters on the public lands,’” the court said.

While the Corps also suggested that Lackie would not have offered to pay an additional sum to resolve the permit dispute if he believed that the agreement had already settled it, the court pointed out that the Corps was then taking the position that the permit was still subject to revocation, despite the settlement agreement.

The court reversed the judgment of the district court and remanded with instructions to set aside the Corps’s decision to revoke Lackie’s permit as unlawful agency action.

Assistant U.S. Attorney Richard M. Pence Jr. represented the Corps. The U.S. Attorney’s Office for the Eastern District of Arkansas declined to comment on the case.

Little Rock, Ark. attorney Martin A. Kasten, who represented Lackie, did not respond to a request for comment.

The case is Lackie v. Noe, No. 24-3239.