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Livingson v. United States

United States District Court, D. South Carolina, Charleston Division

March 31, 2016

UNITED STATES OF AMERICA, UNITED STATES FISH AND WILDLIFE SERIVE, RAYE NILUS, individually and in her official capacity, SARAH DAWSEY, individually and in her official capacity, RYAN K. WAGNER, individually and in his official capacity, CHIRSTOPHER CROLLEY d/b/a Coastal Expeditions Defendants.



The following matters are before the court on defendants Sarah Dawsey (“Dawsey”), Raye Nilus (“Nilus”), and Ryan K. Wagner’s (“Wagner”) motion to dismiss plaintiffs’ first cause of action, and plaintiffs’ motion for partial summary judgment. For the reasons set forth below, the court grants defendants’ motion to dismiss and denies plaintiffs’ motion for summary judgment.


The Cape Romain National Wildlife Refuge (the “Refuge”) was created by Congress under the Migratory Bird Conservation Act in 1932. Am. Compl. ¶ 20. Pursuant to 16 U.S.C. § 668dd et seq., the Refuge is now administered by the Secretary of the Interior and defendant United States Fish and Wildlife Service (the “FWS”) as part of the National Wildlife Refuge System. Through various acquisitions since its inception, the Refuge has grown to comprise approximately sixty-six thousand (66, 000) acres, covering twenty-two (22) miles along the South Carolina coast. See Pls.’ Mot. Ex. A; S.C. Code Ann. § 3-3-210. One such acquisition occurred in 1991, when the United States entered into a ninety-nine (99) year lease with the South Carolina Budget and Control Board, acquiring the following property for use as a national wildlife refuge:

[A]ll of the State of South Carolina’s interest in all marsh lands, sand banks, shores, edges, lands uncovered by water at low tide, and all waterbottoms and waters which are included within the boundaries of the [Refuge], or which are contiguous and adjacent to the easterly boundary and fronting on the Atlantic Ocean at mean low tide.

Pls.’ Mot. Ex. A. This grant was made subject to “existing easements for canals, ditches, flumes, pipelines, railroads, public highways and roads, telephone, telegraph, power transmission lines and public utilities.” Id. Notably, the South Carolina Constitution guarantees that “[a]ll navigable waters shall forever remain public highways.” S.C. Const. Art. XIV, § 4

Plaintiff Kathie Livingston (“Livingston”) operates a for profit business, Nature Adventure Outfitters, Inc. (“NAO, ” together with Livingston, “plaintiffs”), which takes customers on nature tours, by kayak and otherwise, through various locations in the South Carolina Lowcountry. Am. Compl. ¶ 1. Certain NAO tours once passed through the waters of the Refuge, though they did not go onto Refuge land. Id. ¶ 25. In October 2013 and again in the Spring of 2014, the Refuge manager, Dawsey, informed plaintiffs that such tours required a Special Use Permit and were otherwise prohibited. Id. ¶¶ 2, 3, 22; Pls.’ Mot. Exs. I, J. Dawsey’s actions were confirmed by her supervisor, Nilus. Am. Compl. ¶¶ 5, 22. During the same time period the Refuge law enforcement officer, Wagner, allegedly threatened to arrest Livingston if she brought customers into the navigable waters of the Refuge. Id. ¶¶ 4, 23. Plaintiffs contend that this restriction was instituted by Dawsey to extend a competitive advantage to her close friend, defendant Chris Crolley (“Crolley”), who operates a competing tour company and holds an exclusive franchise to take customers onto Refuge land. Id. ¶ 27.

Plaintiffs filed the instant action on February 6, 2015 and amended their complaint on March 20, 2015. The Amended Complaint brings causes of action for: (i) violation of due process under the Fifth Amendment of the United States Constitution; (ii) violation of the South Carolina Unfair Trade Practices Act; and (iii) a writ of mandamus pursuant to 28 U.S.C. § 1361, requiring all defendants to allow free navigation of Refuge waters. Id. ¶¶ 17-48. Defendants filed the instant motion to dismiss on August 17, 2015, seeking dismissal of plaintiff’s first cause of action for violation of due process, as to defendants Dawsey, Wagner, and Nilus (the “individual defendants”). Plaintiffs responded to the motion to dismiss on September 2, 2015 and filed their motion for summary judgment on their third cause of action for a writ of mandamus on October 12, 2015. Defendants responded to the summary judgment motion on October 29, 2015, and plaintiffs replied on November 9, 2015. This court held a hearing on both motions on December 7, 2015. At the court’s request, both parties provided supplemental briefing in connection with defendants’ motion to dismiss on March 28, 2016. The motions are now ripe for the court’s review.


A. Motion to Dismiss

Rule 12(c) provides, “[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings.” Courts follow “a fairly restrictive standard” in ruling on Rule 12(c) motions, as “hasty or imprudent use of this summary procedure by the courts violates the policy in favor of ensuring to each litigant a full and fair hearing on the merits of his or her claim or defense.” 5C Charles A. Wright and Arthur R. Miller, Federal Practice and Procedure § 1368 (3d ed. 2011). Ultimately, “a defendant may not prevail on a motion for judgment on the pleadings if there are pleadings that, if proved, would permit recovery for the plaintiff.” BET Plant Servs., Inc. v. W.D. Robinson Elec. Co., 941 F.Supp. 54, 55 (D.S.C. 1996).

“[A] Rule 12(c) motion for judgment on the pleadings is decided under the same standard as a motion to dismiss under Rule 12(b)(6).” Deutsche Bank Nat’l Trust Co. v. I.R.S., 361 F. App’x 527, 529 (4th Cir. 2010); see also Burbach Broad. Co. v. Elkins Radio, 278 F.3d 401, 405 (4th Cir. 2002). Thus, in order to survive a motion for judgment on the pleadings, the complaint must contain sufficient facts “to raise a right to relief above the speculative level” and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). In reviewing the complaint, the court accepts all well-pleaded allegations as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. Venkatraman v. REI Sys., Inc., 417 F.3d 418, 420 (4th Cir. 2005). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662 (2009).

B. Summary Judgment

Summary judgment shall be granted “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248. “[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ’ that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Id. at 249. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Id. at 255.


A. Summary Judgment[2]

Plaintiffs ask the court to grant summary judgment as to their third cause of action for a writ of mandamus pursuant to 28 U.S.C. § 1361, preventing defendants from interfering with plaintiffs’ right to freely navigate the navigable waters located within the Refuge. Pls.’ Mot. 2. Defendants argue that the contours of plaintiffs’ right are not as absolute as plaintiffs suggest, and that genuine issues ...

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