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Livingston v. United States

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

December 21, 2016

KATHIE LIVINGSON and NATURE ADVENTURE OUTFITTERS INC., Plaintiff,
v.
UNITED STATES OF AMERICA, UNITED STATES FISH AND WILDLIFE SERVICE, 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.

          ORDER

          DAVID C. NORTON UNITED STATES DISTRICT JUDGE

         The following matters are before the court on defendants United States of America, United States Fish and Wildlife Service, Raye Nilus, Sarah Dawsey, and Ryan Wagner's (“defendants”) motion to reconsider the court's March 31, 2016 order, and plaintiffs' motion to alter or amend the court's March 31, 2016 order. For the reasons set forth below, the court grants defendants' motion to reconsider, and denies plaintiffs' motion to alter or amend.

         I. BACKGROUND

         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. The Refuge was expanded in 1991, when the United States entered into a 99 year lease with the South Carolina Budget and Control Board to acquire the following property:

[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. 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. Plaintiffs contend that, since October 2013, the FWS, along with Sarah Dawsey (“Dawsey”), the Refuge manager, Raye Nilus, her supervisor, and Ryan K. Wagner, the Refuge law enforcement officer, have prevented plaintiffs from conducting tours through the Refuge waters without a Special Use Permit. Id. ¶¶ 2-5, 22, 23. Plaintiffs further 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 brought claims for: (i) violation of plaintiffs' Fifth Amendment right to due process, pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971); (ii) violation of the South Carolina Unfair Trade Practices Act (“SCUPTA”); and (iii) a writ of mandamus pursuant to 28 U.S.C. § 1361, requiring defendants to allow free navigation of Refuge waters. Id. ¶¶ 17-48. Defendants filed a motion to dismiss plaintiffs' Bivens claim on August 17, 2016, ECF No. 35, and plaintiffs filed a motion for summary judgment on their mandamus claim on October 12, 2015. ECF No. 41. Defendants never formally moved to dismiss plaintiffs' mandamus claim, but did argue that the court lacked subject matter jurisdiction over that claim in its response to plaintiffs' motion for summary judgment. ECF No. 44 at 8. The court entered an order on March 31, 2016, granting defendants' motion to dismiss plaintiffs' Bivens claim, and denying plaintiffs' motion for summary judgment on the mandamus claim (the “Order”). ECF No. 58. On April 11, 2016, defendants filed the instant motion to reconsider. ECF No. 61. On April 25, 2016, plaintiffs incorporated their response into their separate motion to alter or amend. ECF No. 63. Defendants filed a dual reply in support of their motion to reconsider and response to plaintiffs' motion to alter or amend on May 12, 2016. ECF No. 65. The court held a hearing on the matter on December 8, 2016, and the matter is now ripe for the court's review.

         II. STANDARDS

         A. Rule 59(e)

         Federal Rule of Civil Procedure 59(e) provides that “[a] motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment.” While Rule 59(e) does not supply a standard to guide the court's exercise of its power to alter or amend, the Fourth Circuit has recognized that a court may grant a Rule 59(e) motion “only in very narrow circumstances: (1) to accommodate an intervening change in controlling law, (2) to account for new evidence not available at trial, or (3) to correct a clear error of law or prevent manifest injustice.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002). Rule 59(e) motions may not be used to make arguments that could have been made before the judgment was entered. See Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998). Moreover, “[a] party's mere disagreement with the court's ruling does not warrant a Rule 59(e) motion, and such a motion should not be used to rehash arguments previously presented or to submit evidence which should have been previously submitted.” Sams v. Heritage Transp., Inc., No. 2:12-cv-0462, 2013 WL 4441949, at *1 (D.S.C. August 15, 2013).

         Rule 59(e) provides an “extraordinary remedy that should be used sparingly.” Pac. Ins. Co., 148 F.3d at 403 (internal citation omitted); Wright v. Conley, No. 10-cv-2444, 2013 WL 314749, at *1 (D.S.C. Jan. 28, 2013). Whether to alter or amend a judgment under Rule 59(e) is within the sound discretion of the district court. Bogart v. Chapell, 396 F.3d 548, 555 (4th Cir. 2005).

         B. Rule 54(b)

Federal Rule of Civil Procedure 54(b) states, in relevant part, that [A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

         A “judgment, ” within the meaning of Rule 54, “includes a decree and any order from which an appeal lies.” Fed.R.Civ.P. 54(a). A motion brought under Rule 54(b) is judged by similar standards as a motion brought under Rule 59(e), which may only be granted for the following reasons: “(1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.” Grayson Consulting, Inc. v. Cathcart, No. 2:07-cv-00593-DCN, 2014 WL 587756, at *1 (D.S.C. Feb. 14, 2014) (quoting Pac. Ins. Co. v. Am. Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir. 1998)); Slep-Tone Entm't Corp. v. Garner, 2011 WL 6370364, at *1 (W.D. N.C. Dec. 20, 2011).

         III. DISCUSSION

         A. Defendants' Motion ...


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