8th Cir. Upholds Revocation of Shoreline Use Permit


In the case if McClung v. Paul, decided June 8, 2015, the Eighth Circuit Court of Appeals affirmed the decision of the lower court that the District Corps Commander’s revocation of a federal permit to use the boat dock and concrete steps located on federal property adjacent to the McClungs’ residence in the Greers Ferry Lake, Arkansas area, was not arbitrary and capricious.

The McClungs received a federal shoreline permit to maintain the boat dock and the concrete steps, which contained a number of permit conditions. One of the conditions, printed on the back of the permit, stated that”[n]o vegetation other than prescribed in the permit will be damaged, destroyed or removed”. They also received a mowing permit which indicated the limited area in which vegetation “modification’ was permitted. The Corps determined that 8400 square feet of federal land had been sprayed with an herbicide (an area approximately the same with as the McClungs’ lot), and these actions were determined by the District Commander to be a violation of the permit.

Of interest, an internal Corps memorandum included in the administrative record shows that the Corps considered a fine of $75 or $250 as possible sanctions rather than revocation of the permit. However, the operations project manager recommended that the permit be revoked instead. The memorandum expresses concern that a small fine would “establish[] precedence that it is ‘ok’ to violate the terms and conditions of permits” and could “lead to additional violations by neighbors” who might decide that it is worth paying a fine to get a better view of the lake. The memorandum, however, acknowledged that revoking the permit for this first time violation “may be seen as punitive . . . [but this] is the way of the future. Somebody has to be first. It is not out of our authority to take this action, . . . just out of the norm.”

Following an administrative appeal, the permit was revoked, and the McClungs challenged this action in federal court, alleging that the revocation was arbitrary and capricious, that the Corps’ action ignored NEPA , and their constitutional due process rights were violated. The court of appeals rejected these arguments, holding that the revocation of this permit was not a major federal action triggering NEPA, and since the McClungs had no property rights in the shoreline permits, there could be no due process violation.