     Case: 15-20625      Document: 00513749826         Page: 1    Date Filed: 11/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 15-20625                              FILED
                                                                         November 7, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                            Plaintiff - Appellant Cross-Appellee

v.

THOMAS E. LIPAR; JESSE VALERIANO;
LIPAR GROUP, INCORPORATED; LGI LAND, L.L.C.;
LGI GP, L.L.C.; LGI DEVELOPMENT;
JTI CONTRACTORS, INCORPORATED;
JTI CONSTRUCTION, INCORPORATED,

                            Defendants - Appellees Cross-Appellants



                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:10-CV-1904


Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Despite having before it a lengthy and detailed summary judgment
record, including thousands of pages of exhibits, the district court issued an
eight-page opinion, of which three pages dealt with sanctions against the
government, and only five pages with whether the land in question constituted


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-20625
“waters of the United States.” 33 U.S.C. §1362(7). The district court’s opinion
is bereft of citations to record evidence and provides this court virtually no
guidance as to how the court applied the facts to the law. The court did not
explain its conclusion that none of the seven particular tracts nor the alleged
streambed are wetlands under either the “contiguous” theory adopted by the
Rapanos plurality or the “nexus” theory of Justice Kennedy. See Rapanos v.
United States, 547 U.S. 715, 126 S. Ct. 2208 (2006).      The opinion consists
almost entirely of conclusory statements and factually unilluminating
analogies. Because we are unable to perform our appellate review function
without a better understanding of the court’s reasoning and the basis on which
it evaluated the facts, we REVERSE and REMAND to the district court for
clarification of its ruling.
      Thomas Lipar and Jesse Valeriano (collectively with other defendants,
“Lipar”) are real estate developers who began developing two parcels of land
(Lake Windcrest and Benders Landing) in 2004. The parcels, located roughly
in the northern suburbs of Houston, Texas, are about twenty miles apart from
each other. In 2007, the Environmental Protection Agency (EPA) took an
interest in Benders Landing and Lake Windcrest and began investigating
possible Clean Water Act (CWA) violations.        The EPA eventually issued
multiple cease and desist orders to stop Lipar from discharging dredged and/or
fill material into “waters of the United States.” In 2010, the Department of
Justice sued Lipar alleging that Lipar discharged pollutants in violation of the
Clean Water Act, 33 U.S.C. § 1319(b), (d), at both Benders Landing and Lake
Windcrest and that Lipar violated the four EPA cease and desist orders. At
the outset of the litigation, the district court ordered the government to
produce every document it had about the property, imposed substantial
discovery limitations, issued orders prohibiting discovery without prior court
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                                 No. 15-20625
approval and prohibited the EPA from visiting Benders Landing or Lake
Windcrest.
      In 2011, Lipar moved for sanctions and summary judgment.               The
government filed no cross-motion for summary judgment. The district court
held a hearing in April 2011, at which both of Lipar’s motions were taken up
although the parties had not been notified that the summary judgment motion
would be heard. In May 2012, the government asked the district court to allow
its expert witnesses to inspect the sites at both Benders Landing and Lake
Windcrest in preparation for trial. The court denied that motion in June 2012.
Finally, in August 2015 the district court produced the eight-page opinion that
granted summary judgment to the Lipar defendants and then assessed
attorneys’ fees as a sanction against the government for its “intractable,
uncooperative, and defiant” behavior.
      The government has appealed on the CWA disposition, while Lipar
urges its right immediately to collect the sanction. Three main issues are
presented: (1) whether the district court erred in granting summary judgment,
(2) whether the court abused its discretion in denying the government site
inspections, and (3) whether we have jurisdiction to review the attorneys’ fees
award.
      1.     Because the district court’s opinion insufficiently articulates the
“basis of its ruling,” we remand this issue for further clarification. See Wright
v. Allstate Ins. Co., 415 F.3d 384, 391 (5th Cir. 2005). Despite the government’s
having compiled a record that comprises thousands of pages, the district court
resolved the analysis of the seven dispersed tracts and an alleged streambed
as not falling within the statutory term “waters of the United States” in about
five pages of discussion. This was flawed legally and factually.


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                                  No. 15-20625
      “Waters of the United States” has been a disputed term for several
decades, and following Rapanos, a split decision of the Supreme Court, there
still exists a circuit split on the statute’s interpretation. Lipar proposed a third
plausible interpretation, and the parties’ views differ substantially on this
fundamental issue. The district court failed to address the varying tests.
While the court purported to reject the government’s position under either the
Rapanos plurality or concurring opinions, which would have been a legally
permissible approach, its legal analysis does not satisfactorily dispel the
government’s contention that covered “waters” need only have a “relatively
permanent flow” and can be seasonal. See, e.g., Rapanos, 126 S. Ct. at 2220-21
and n.5.     Instead, “the opinion consists almost entirely of conclusory
statements,” and shows little evidence of addressing the extensive record relied
upon by the government as non-movant. United States ex rel. Little v. Shell
Expl. & Prod. Co., 602 F. App’x. 959, 976 (5th Cir. 2015).
      Factually, the district court focused on the two properties (Lake
Windcrest and Bender’s Landing) generally rather than the individual tracts
and streambed. Disaggregated, fact-specific appellate review of the ruling as
applied to each of the tracts is necessary but has been rendered impossible.
Expert opinions, maps, biological data, and aerial surveys were among the
voluminous technical evidence submitted by the government. Contrary to its
duty to examine the facts in the light most favorable to the non-movant, the
district court seems to discount some of this evidence and make credibility
decisions adverse to the government.
      From our current vantage point, it cannot be determined whether
further evaluation of the record and more nuanced legal analysis will reveal
material fact issues requiring a jury trial about any or all of the challenged
tracts. The Supreme Court has previously held that “[g]iven the circumstances
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                                  No. 15-20625
of this case and the unclear basis of the District Court’s decision, the Court of
Appeals should have remanded the case to the District Court for clarification.”
Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384, 128 S. Ct. 1140,
1144 (2008). Such remand is the prudent course of action in this case.
      2.    In view of our remand for further clarification, we do not speculate
on whether the court should reconsider and exercise its discretion to permit
the government’s experts to conduct additional site visits.
      3.    Lipar’s ostensible cross-appeal is dismissed because the fee order
is not ripe. An appeal of an award of attorneys’ fees is not ripe until the fees
have been reduced to a sum certain.         See Instone Travel Tech Marine &
Offshore v. Int’l Shipping Partners, 334 F.3d 423, 433 (5th Cir. 2003) (“It is
difficult to imagine how a district court’s refusal to award appellate attorney
fees before an appeal had even been taken could possibly be declared an
error.”); S. Travel Club, Inc. v. Carnival Air Lines, Inc., 986 F.2d 125, 131 (5th
Cir. 1993) (per curiam). The district court has not yet had an opportunity to
determine what those fees are, and the award of fees may have to be
reconsidered after further review of the merits of the case. We dismiss this
attempted appeal.
      For the foregoing reasons, the judgment of the district court is
REVERSED and REMANDED for further proceedings in accordance
herewith, and the cross-appeal of the fee determination is DISMISSED.




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