United States District Court, D. South Carolina, Charleston Division
KATHIE LIVINGSON and NATURE ADVENTURE OUTFITTERS INC., Plaintiff,
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.
C. NORTON UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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).
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.
“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).
Defendants' Motion ...