ELR Citation: 50 ELR 20026
No(s). 19-30213 (5th Cir. Jan 21, 2020)

The Fifth Circuit held that the U.S. Army Corps of Engineers had not waived its sovereign immunity from Louisiana's lawsuit alleging that the Corps failed to maintain the Gulf Intracoastal Waterway within authorized parameters under the River and Harbor Improvements Act (RHIA). Louisiana argued that the Corps had failed to confine the waterway to the parcel of ground upon which it holds its servitude, thus extending the waterway onto land owned by the state, and sought an injunction requiring the Corps to abate and remove the encroachment. The Corps moved to dismiss for lack of subject matter jurisdiction based on its sovereign immunity. The state responded by asserting that the APA waived the agency's sovereign immunity because the state had been adversely affected by "agency action" that fell within the "zone of interests" sought to be protected by the RHIA. The court found that the state's focus on the Corps' failure to keep the waterway within the agreed-to width did not constitute agency action, and that the interests of landowners surrounding the waterway did not fall within the zone of interests sought to be protected by the RHIA. It therefore held that the Corps had not waived its sovereign immunity under the APA, and affirmed the district court's dismissal for lack of subject matter jurisdiction.