                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT
                          ___________________

                              NO. 97-30359
                              NO. 98-30203
                          ___________________

           KATHRYN GWIN ELLISON; WHISKEY BAY ACRES L. L. C.;
             DAVID M. ELLISON, JR., Plaintiffs - Appellants

                                  vs.

                  WILLIAM L. CONNOR, District Engineer,
               Department of the Army Corps of Engineers;
                 UNITED STATES OF AMERICA, on behalf of
         U. S. Army Corps of Engineers, Defendants - Appellees

     --------------------------------------------------
                    UNITED STATES OF AMERICA,

                            Plaintiff - Counter Defendant - Appellee

                                  vs.

                         JIMMY D. LAVIOLETTE,

                         Defendant - Counter Claimant - Appellant
_________________________________________________________

          Appeals from the United States District Court
              for the Western District of Louisiana
_________________________________________________________
                        September 11, 1998
Before KING and DAVIS, Circuit Judges, and VANCE*, District Judge

SARAH S. VANCE, District Judge:

     Before the Court are the consolidated appeals of Kathryn and

David Ellison (“Ellisons”) and Jimmy D. Laviolette

(“Laviolette”).     The appellants appeal two adverse district court

decisions involving the U.S. Corps of Engineers’ (“Corps”)


     *
          District Judge of the Eastern District of Louisiana,
sitting by designation.
refusal to issue permits allowing them to build camp-homes on

their property in the Atchafalaya floodway.    We agree with the

district court that it lacked subject matter jurisdiction to

review the Corps’ permitting decision under the Administrative

Procedure Act.    We find that the district court erred in finding

that the Ellisons lacked standing to assert constitutional due

process claims, but we agree with the district court’s reasoning

that such claims are meritless.    Finally, we affirm the district

court’s grant of summary judgment upholding the Corps’ right to

require Laviolette to remove his camp from the floodway.



I.   Factual Background

     In 1985, the Ellisons acquired 1206 acres of land from

Texaco, Inc. in St. Martin Parish, Louisiana.    The property

fronts the Whiskey Bay Pilot Channel, a waterway that connects

the Atchafalaya River and the Mississippi River.    The Ellisons’

land lies within the Whiskey Bay Pilot Channel Project, which was

developed by the Corps as part of the Atchafalaya Basin Floodway

System.   The Project was authorized by Congress in legislation

providing for flood control on the Mississippi River and its

tributaries.     See Mississippi River Flood Control Act, 49 Stat.

1508 (June 15, 1936).

     The Ellisons purchased their tract subject to a “perpetual

flowage, channel and disposal” easement that was granted to the


                                   2
United States from the Texas Company on August 4, 1941.   The

easement grants the United States broad, perpetual rights to

enter, excavate, and flood the property, as well as to construct

levees, embankments, bridges, highways, and utilities thereon,

pursuant to its management of flooding and navigation on the

Mississippi River and its tributaries.

     The 1941 deed reserves to Texas Company and its assigns, in

addition to certain rights related to mineral development, all

rights and privileges that do not interfere with the easement.

However, the deed contains a building restriction which requires

the permission of the Corps to build any structures that “may in

any way interfere” with navigation in any channel that "may be

excavated" or with "the construction, maintenance or repair of

any channels, or any levees or other works to be built" on the

land.

     In the early 1990s, Ellison sold two small tracts to third

parties, and the United States acquired by condemnation the

remainder of the 1206 acres.   However, on June 21, 1993 the

United States revested in the Ellisons the 110.9 acres at issue

in this case.

     In reaching the agreement to revest the land, the Ellisons

allege that the Corps orally agreed to grant permits for the

development of recreational campsites on the property.    The only

evidence of the alleged agreement was a June 30, 1993 letter from

Thad J. Brown, Chief of the Real Estate Division of the

                                 3
Department of the Army.   The letter provided in part:

        In connection with your request for an outline of
        our permit application process . . .

        Upon receipt of your [permit] request, we will .
        . . review for such things as present or future
        Corps activities in the area (future plans to
        widen, deepen, or move the channel, plans to
        dredge the channel), the historical,
        environmental and cultural resources of the
        planned site (Indian mounds or artifacts, eagle
        nest, etc.), and either approve the request, deny
        the request for specific reasons, or require
        modification to the request that we now negotiate
        with you.

     The Ellisons proceeded to subdivide a portion of their

property into 55 one acre lots, known as the Whiskey Bay Acres

Subdivision.    By October 8, 1995, the Ellisons had sold 38 lots,

including one to appellant Laviolette.       Laviolette’s deed

reflected the existence of the easement and recited the need to

acquire a permit from the Corps before construction of any

improvements.

     Despite the language in his deed, Laviolette moved onto his

lot a wooden camp-house in December 1994.       On April 13, 1995, the

Corps advised Laviolette of the requirement to obtain a permit

for the structure.   Laviolette responded by returning the letter

with a handwritten note stating, “Please issue me a permit.

Thank you, Jimmy D. Laviolette.”       In addition to Laviolette,

other lot owners submitted permit requests to the Corps.         The

Ellisons did not submit a request for permit.

     On October 10, 1995, the Corps notified Laviolette, Ellison


                                   4
and the other lot owners that, after consideration of its present

and future requirements, that appellee “found it to be in the

best interest of the United States to prohibit the construction

or placement of any structures on th[e] land.”   The letter

further requested that any existing structures be removed.    The

Corps agreed, however, to allow the placement of easily removable

items such as tents and wheeled trailers less than 40 feet long

upon obtaining a real estate permit.   It noted, however, that

regulatory permits under the Clean Water Act would also be

required if the property were determined to be wetlands.

     On October 11, 1995, the Ellisons wrote to Colonel Clow,

District Engineer of the Corps, outlining their understanding of

the history of the problem and requesting a meeting.   Clow met

with the Ellisons and responded by letter on November 17, 1995,

affirming the Corps’ decision of October 10.

     Clow noted that the Corps’ letter of June 30, 1993 was based

on the understanding that the Ellisons intended to apply for a

single camp permit for their property.   He stated that the

Ellisons had not indicated their intent to subdivide the

property, which would have met with a different response.     Clow

stated, “While it is true that we currently have no plans to

modify the Whiskey Bay Pilot Channel, the dynamic nature of the

Atchafalaya Basin may require such action in the future.”




                                5
II.   Proceedings Below

      In response to the Corps’ action, the Ellisons filed suit

for declaratory relief and a stay of further action by the Corps.

The Ellisons challenged the Corps’ decision as arbitrary,

capricious and made in violation of applicable permitting

procedures.   They asserted that their due process rights were

violated and that the Court should declare that they have the

right to build the contested structures.   On September 1, 1997,

the district court dismissed the action, holding that it lacked

subject matter jurisdiction to review the Corps’ decision under

the Administrative Procedures Act ("APA"), 5 U.S.C. § 701, et

seq., as it was an action “committed to agency discretion by law”

under § 701(a)(2) of the APA.   The district court also found that

the Ellisons lacked standing to assert a constitutional due

process claim and that such constitutional claims were meritless

in any event.

      Meanwhile, on February 18, 1997, the United States sued

Laviolette to force him to remove his camp from the property

covered by the easement.   Based on its interpretation of the

easement granted in 1941, the district court granted the

government’s motion for summary judgment, finding that the Corps

was “well within its rights” in denying Laviolette’s permit and

requiring him to remove the existing structure.   The court also

held that there was no agreement binding the Corps to issue


                                 6
Laviolette a permit.

     These consolidated appeals challenge each of the district

court’s decisions.



III. Standards of Review

     This Court reviews a district court’s dismissal for lack of

subject matter jurisdiction de novo.   Carney v. Resolution Trust

Corp., 19 F.3d 950, 954 (5th Cir. 1994).

     We review a dismissal for failure to state a claim upon

which relief may be granted under the same standard used by the

district court: a claim may not be dismissed unless it appears

certain that the plaintiffs cannot prove any set of facts in

support of their claim that would entitle them to relief.    Norman

v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).

     We review a district court’s grant of summary judgment de

novo, applying the same standard of review as would the district

court.   Reingold v. Swiftships, Inc., 126 F.3d 645, 646 (5th Cir.

1997).   Summary judgment is proper only when it appears that

there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law.   Fed. R. Civ.

P. 56(c).   On summary judgment, the inferences to be drawn from

the underlying facts contained in the record must be viewed in

the light most favorable to the party opposing the motion.

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).


                                 7
IV. The Ellisons’ Appeal

     The Ellisons assert that the district court erred in finding

that the Corps’ decision to deny permits was “committed to agency

discretion by law” and hence was unreviewable under the APA.      5

U.S.C. § 701(a)(2).

     The APA allows any person “adversely affected or aggrieved

by agency action within the meaning of a relevant statute” to

obtain “judicial review thereof.”     5 U.S.C. § 702.   The APA

precludes judicial review, however, when the “agency action is

committed to agency discretion by law.”     Id., § 701(a)(2).

     The APA’s exception to judicial review is “very narrow” and

applies only “in those rare instances where ‘statutes are drawn

in such broad terms that in a given case there is no law to

apply.’”   Citizens to Preserve Overton Park, Inc. v. Volpe, 401

U.S. 402, 410 (1971), citing S. Rep. No. 752, 79th Cong., 1st

Sess., 26 (1945); Suntex Dairy v. Block, 666 F.2d 158, 163-64

(5th Cir. 1982).   An agency’s own regulations can provide the

requisite “law to apply.”   McAlpine v. United States, 112 F.3d

1429, 1434 (10th Cir. 1997); Center for Auto Safety v. Dole, 828

F.2d 799, 803 (D.C. Cir. 1987).

     Under § 701(a)(2) of the APA, review is not available “if

the statute is drawn so that a court would have no meaningful

standard against which to judge the agency’s exercise of


                                  8
discretion.”       Heckler v. Chaney, 470 U.S. 821, 830 (1985).

Accordingly, the Court has “emphasized that § 701(a)(2) requires

careful examination of the statute on which the claim of agency

illegality is based.”       Webster v. Doe, 486 U.S. 592, 600 (1988).

     Finally, this Court has determined that practical policy

issues also should be considered.        Bullard v. Webster, 623 F.2d

1042, 1046 (5th Cir. 1980).      We held in Bullard that “[t]here

must be a weighing of the need for, and feasibility of, judicial

review versus the potential for disruption of the administrative

process.”    Id.

     Even if the substance of an agency’s decision is beyond

review as discretionary, an agency’s failure to follow its own

regulations may be challenged under the APA.       See Webster, 486

U.S. at 601 n.7 and cases cited therein.



     A.     Permitting Procedures

     In order to ascertain whether the relevant law gave the

Corps discretion to deny the permits, the Court must first

determine the authority upon which the Corps relied in making its

decision.    The Ellisons assert that the Corps’ actions were

governed by the Rivers and Harbors Act ("RHA”), 33 C.F.R. § 403,

et seq., and the regulations adopted pursuant to that statute.

Those regulations set out many substantive and procedural

requirements for the issuance of permits.        See generally 33


                                     9
C.F.R. 320, 325, 330.    The Corps, however, argues that it made

its permitting decision as a property owner under regulations

adopted pursuant to 5 U.S.C. § 301.     That statute authorizes

department heads to prescribe regulations for the use of a

department’s property.    See 5 U.S.C. § 301.    The Corps asserts

that the applicable regulation is 33 C.F.R. § 211, which governs

temporary uses of the Corps’ own property and that this

regulation commits the permitting decision to its discretion.

     Appellants contention that the Corps necessarily acted under

the RHA fails for three reasons.      First, the building restriction

and permit requirement at issue derived from an easement, which

is an interest in real estate owned by the United States.     This

suggests the applicability of Section 211, which governs the

Corps’ real estate interests.    See 33 C.F.R. § 211 (governing

"temporary use by others" of the Corps’ real estate).     Further,

the easement did not refer to RHA permitting procedures.     Indeed,

in its October 1995 letter, the Corps described the permits in

issue as "real estate permits" and informed landowners that

regulatory permits could also have to be obtained, even if it

issued a real estate permit to install a temporary camp.

     Second, it would be pointless to obtain a broad, perpetual

flowage easement if the only way the Corps could prevent

potential obstruction of the easement was to use regulatory

permitting procedures.    Third, depending on the nature of the


                                 10
property, real estate permits could be required under the

easement, as well as regulatory permits under the RHA or the

Clean Water Act.

     Further, we do not agree with appellants’ argument that the

Corps was required to follow the enumerated "regulatory policies"

set out in 33 C.F.R. § 320 in dealing with its own real estate

interests. Section 320.2(e) provides that for temporary uses of

property constructed by the Corps, permits are to be issued under

existing real estate regulations.     In addition, Section 320.2

lists the source authorities for requiring regulatory permits,

and none is as broad as the permit requirement stated in the

easement.   This suggests that the easement authorized the Corps

to require permits in circumstances in which a regulatory permit

would not be required.   Thus, we find that the Corps acted as a

property owner when it denied the permits.

     When the Corps acts in a proprietary capacity, its conduct

is governed by 33 C.F.R. 211.   This regulation was adopted

pursuant to 5 U.S.C. § 301, which provides that “The head of an

Executive department or military department may prescribe

regulations for the . . . custody, use, and preservation of

its . . . property.”   Section 211 governs “temporary use by

others” of the Corps’ real estate.     33 C.F.R. § 211.   "Real

estate" is defined to include "rights-of-way or easements,

whether temporary or permanent."     § 211.1.   In particular, §

211.9 applies to "Applications for leases, easements, licenses

                                11
and permits."    It provides:

     Applications for use of Civil Works property should be
     made to the District Engineer of the district within
     the boundaries of which the real estate is located.
     The District Engineer will determine whether the
     property will be required for public use during the
     period of the contemplated grant and whether the
     requested grant will interfere with any operations of
     the United States.

33 C.F.R. § 211.9.    No other procedural or substantive

requirements are imposed on the Corps in making this

determination.

     Our review of the relevant statutory and regulatory

framework convinces us that § 211.9 commits the permitting

decision at issue to agency discretion and precludes judicial

review.   In Suntex Dairy, we adopted a useful analytical

framework for resolving this issue.       In that case, a statute

required the Secretary of Agriculture to decide whether issuance

of an order would “tend to effectuate the declared policy” of the

relevant Act, which was, inter alia, to regulate milk marketing.

Suntex Dairy, 666 F.2d at 160-61.        We found that this provision

did not grant complete discretion to the Secretary because it

also required her to hold a public hearing and imposed “rigorous

obligations on the Secretary to develop an evidentiary record” to

support her determination.       Id. at 164.   Another provision of the

same law required the Secretary to determine whether a proposed

order was “the only practical means of advancing the interests of

the producers.”    Id. at 161.    We found that this provision gave

                                    12
the Secretary discretion because it did not require the

consideration of specific factors, the making of findings or the

development of any additional evidentiary record.    Id. at 164-65.

We noted that without these, the judiciary was in no position to

gainsay the Secretary’s determination as arbitrary, capricious or

an abuse of discretion.    Id. at 166.

     Here, the statute authorizing Section 211.9, 5 U.S.C. § 301,

does not contain standards or evidentiary requirements for the

issuance of regulations.   Further, the regulation in issue, §

211.9, lacks standards in the same way as the provision found

discretionary in Suntex.    Section 211.9 requires the Corps to

determine whether the property in question will be “required for

public use” during the period of the contemplated grant and

“whether the requested grant will interfere with any operations

of the United States.”    These standards are of the same level of

generality as the discretionary statute in Suntex, which required

the Secretary to determine whether an order “was the only

practical means of advancing the interests of the producers.”

Further, as in Suntex, § 211.9 does not require the Corps to

develop any factual record to support its determination.

     In contrast, the RHA provides an example of a statute that

does not give the Corps complete discretion over permits.   A §

320.4 permit requires the Corps to consider the following in

part:


                                 13
          . . . All factors which may be relevant to the
          proposal must be considered including the
          cumulative effects thereof: among those are
          conservation, economics, aesthetics, general
          environmental concerns, wetlands, historic
          properties, fish and wildlife values, flood
          hazards, floodplain values, land use, navigation,
          shore erosion and accretion, recreation, water
          supply and conservation, water quality, energy
          needs, safety, . . . mineral needs,
          considerations of property ownership, . . .”

The regulation also sets forth pages of general criteria to be

considered in the examination of every application.     Id.

Further, specific procedural requirements for processing

applications and for providing public notice are also required.

Id. § 325.1-3.    In contrast to the extensive requirements of the

RHA regulations, the broad language of § 211.9 does not require

the Corps to weigh alternative uses of the property or to follow

any particular permitting procedure.

       The Supreme Court’s decision in Webster further supports our

conclusion.    In Webster, a discharged CIA employee contended that

his termination violated the agency’s regulations.    486 U.S. at

600.    The relevant statute allowed termination of a CIA employee

whenever the Director “shall deem such termination necessary or

advisable in the interests of the United States.”     Id.   The Court

held that the “standard fairly exudes deference to the Director.”

Id.    The Court also based its decision on an analysis of “the

overall structure” of the National Security Act, under which the

CIA director was given responsibility to protect the integrity of


                                 14
the agency and intelligence sources, which was essential to

national security.    Id. at 600-01.

     As in Webster, the overall structure of 5 U.S.C. § 301 and

33 C.F.R. § 211 reinforces our conclusion.      In addition to the

language already cited, other language in Section 211 "exudes"

discretion.    For example, Section 211 authorizes the Secretary of

the Army to issue leases "whenever he shall deem it to be

advantageous to the Government."      33 C.F.R. 211.6(a)(1).   The

Secretary may grant an easement upon a finding that it is not

incompatible with the public interest "and under such terms and

conditions as are deemed advisable by him."      Id. 211.6(b)(1)(i)

and (iii).    Further, because § 211 applies only to property

interests owned by the government, the need for judicial review

of decisions pursuant thereto is not compelling.      In this case, a

public interest determination was obviously made with respect to

this property in 1941 when the United States obtained the

perpetual easement to protect the public against flooding under

the authority of national flood control legislation.      We

therefore agree with the district court’s decision that it lacked

jurisdiction to review the substance of the Corps’ decision under

the APA.   In addition, while a claim that the Corps failed to

follow applicable regulations would be reviewable, as noted

above, appellants rely on procedures that are not applicable to

the conduct at issue.


                                 15
     B.     Constitutional Claims

     The Ellisons also challenge the trial court’s finding that

there was no jurisdiction over their constitutional claims for

injunctive relief, that they lacked standing to assert a

constitutional claim against the Corps for damages, and that such

a claim was deficient on the merits.

     The trial court held that § 701(a)(2) of the APA precluded

jurisdiction over appellants’ constitutional claims for

injunctive relief.    We disagree.       The United States Supreme Court

has held that even if agency action is committed to its

discretion by law, judicial review of constitutional claims is

still available unless congressional intent to preclude review is

clear.    Webster, 486 U.S. at 603; see also Federal Deposit Ins.

Corp. v. Bank of Coushatta, 930 F.2d 1122, 1129-30 (5th Cir.

1991).    In Webster, the statute giving the Director of the CIA

wide discretion to fire employees precluded an employee from

challenging the Director’s decision that the termination was in

the interests of the United States.        However, the statute did not

preclude consideration of "colorable" constitutional claims

arising out of the actions of the Director pursuant to that

statute.    486 U.S. at 603.   Likewise, although § 211 gives the

Corps wide discretion to control its property, nowhere does it

explicitly preclude constitutional claims.        Thus, the district

court erred when it held that it lacked jurisdiction over the


                                    16
Ellisons’ due process claims for injunctive relief.

     The district court correctly acknowledged that it had

jurisdiction over the Ellisons’ damage claims for due process

violations under the Tucker Act, 28 U.S.C. § 1346.1     However, the

district court also found that the Ellisons lacked standing to

assert such due process rights because they never actually

applied for building permits.2    This denial of standing was

error.

     To establish standing to challenge an allegedly

unconstitutional policy, as a general matter “a plaintiff must

submit to the challenged policy.”      Jackson-Bey v. Hanslmaier, 115

F.3d 1091, 1096 (2d Cir. 1997).    The source of this requirement


     1
          The Tucker Act vests federal district courts with
jurisdiction over damage "claim[s] against the United States, not
exceeding $10,000 in amount, founded either upon the Constitution
. . . or upon any express or implied contract with the United
States. . . ." 28 U.S.C. § 1346(a)(2). The district court also
found jurisdiction over appellants’ contract claims for damages
but found no claim was stated.
     2
          The district court misidentified the source of this
obligation as the “zone of interests” test discussed by the
Supreme Court in Lujan v. National Wildlife Federation, 497 U.S.
871, 883 (1990). In Lujan, the Court held that a plaintiff must
establish “that the injury he complains of . . . falls within the
‘zone of interests’ sought to be protected by the statutory
provision whose violation forms the legal basis for his
complaint.” Id. This test is relevant when a plaintiff sues an
agency pursuant to a statutory provision. For example, “if there
is a statute preventing widget companies from selling law books,
a law book company might sue to challenge an administrative
regulation permitting the widget company to sell law texts.”
Erwin Chemerinsky, Federal Jurisdiction, § 2.3.6 at 97 (1994).
The zone of interests test is not applied to constitutional
claims such as the Ellisons’ due process allegations. Id. at 98.

                                  17
is the standing principle that a plaintiff “may not seek redress

for injuries done to others.”   Moose Lodge No. 107 v. Irvis, 407

U.S. 163, 166 (1972).   In Moose Lodge, the Supreme Court found

that an African-American who never actually applied for

membership to the Lodge lacked standing to challenge the club’s

all-white membership policy. Id. at 166-67.

     This threshold requirement for standing may be excused,

however, when a plaintiff makes a “substantial showing that

application for the benefit . . . would have been futile.”

Jackson-Bey, 115 F.3d at 1096 (but rejecting futility argument on

the facts).   In Moore v. U.S. Department of Agriculture, 993 F.2d

1222 (5th Cir. 1993), we recognized the futility doctrine when we

found that white farmers did not have to complete an application

to participate in a Farmers Home Administration program when the

FMHA told them that the program was closed to whites.     Id. at

1222-24.   See also Desert Outdoor Advertising, Inc. v. City of

Moreno Valley, 103 F.3d 814, 818 (9th Cir. 1996) (application for

sign permits would be futile when city had sued plaintiffs to

remove signs, and ordinance “flatly prohibited” the signs).

     It would have been futile in this case for the Ellisons to

apply for permits because the Corps sent them a letter on October

10, 1995 specifically stating that it would not permit the

construction or placement of any structures on their land.    We

will not require the Ellisons to ask the Corps for a permit to


                                18
build camp structures when the Corps has already made a

determination that it will not allow them.   Accordingly, we hold

that the Ellisons had standing to assert their due process

claims.

     While we find that appellants had standing to assert due

process claims, we agree with the district court that, in any

event, no such claim has been stated on the merits.   The

appellants assert that the Corps’ failure to follow its own

procedures and its failure to honor the alleged June 1993

agreement deprived them of property without due process.

     First, appellants were not deprived of any process to which

they were entitled.   As explained above, the regulatory process

established under the RHA was not applicable to the Corps’

conduct here.   At most, the Corps was obligated to follow

procedures under § 211.9.   When Colonel Clow explained that the

“dynamic nature of the Atchafalaya Basin” could require future

modification of the Whiskey Bay Channel, he made the requisite §

211.9 determinations that the property could be “required for

public use” during the period of the contemplated grant and that

the grant could “interfere with operations of the United States.”

     The alleged oral agreement also is not a basis for a due

process violation by the Corps.    Appellants base their argument

on our decision in Taylor v. District Engineer, 567 F.2d 1332

(5th Cir. 1978).   Taylor, however, involved regulatory activity



                                  19
by the Corps under the RHA with regard to property owned by the

plaintiff.   Taylor does not apply to the case at hand.

     Moreover, the Corps followed the procedure it allegedly

agreed to in the June 30, 1993 letter.     The letter indicates that

the Corps would review any permit request for “such things as

present or future Corps activities in the area” and reserved the

right to deny the application.   Appellants did not establish that

the Corps committed itself to any further procedural

requirements.   Thus, appellants have not shown that they were

denied any process to which they were entitled.

     Further, the district court correctly found that there were

no property rights as to which the landowners were deprived when

the Corps denied permits for the structures at issue.



V.   The Laviolette Appeal

     The Laviolette appeal raises the issue of the extent of the

Corps’ rights under the easement.     Laviolette argues that the

district erred in construing the easement as authorizing the

Corps to deny permits if the structure could interfere in any way

with potential projects that may be contemplated in the future.

     The easement grants the United States the following rights:

        [T]he perpetual right, power, privilege, and
        easement or servitude, in, on, and to the lands
        described below; of entry thereon; of enlarging
        existing channels, and constructing, maintaining,
        operating drainage and navigation channels and
        cutoffs; improving and altering navigation and

                                 20
        flow conditions, with the privilege of excavating
        any or all of the said land, and of depositing
        thereon excavated or dredged material and the
        water carrying same; of building, maintaining,
        enlarging and removing levees or other
        embankments; of constructing, maintaining and
        operating of bridges and appurtenant works; of
        constructing or rearranging, maintaining and
        operating of highways or roads and public
        utilities; of overflowing by drainage runoff, or
        by flood waters of the Mississippi River and its
        tributaries and outlets, and of performing and
        carrying out any other work that may be necessary
        and desirable in carrying out the provisions of
        Public Act No. 391 - 70th Congress, entitled “An
        Act for the control of floods on the Mississippi
        river and its tributaries, and for other purposes
        . . .

     The easement explicitly reserves all rights that do not

interfere with the easement to the owners of the property, in

addition to reserving certain specific rights related to mineral

development.   The grant requires, however, that if in the

exercise of any reserved rights, the owners wish to erect any

structure that “may in any way interfere” with navigation in any

channel that "may be excavated," or “with the construction,

repair and maintenance of any channels or levees or other works

to be built upon the said land,” the owners must first obtain

permission from the Chief of Engineers.   The Corps explained that

the purpose of the building restriction was to minimize the risk

to human life and property in the event of flooding.

     Laviolette argues that because the Corps’ stated that it had

no current plans to modify the channel, its statement that the

dynamic nature of the Atchafalaya Basin may require such action


                                21
in the future was an insufficient basis to deny his permit.    We

disagree.   We also find unpersuasive Laviolette’s argument that

his structure can be easily removed from the property on short

notice if the Corps decides to flood the area or modify the

channel.

     As the district court noted, “When parties establish a

servitude by contract and that contract provides the dimensions

of the servitude, the contract governs the extent and the mode of

the use of the servitude.”     Hostetler v. W. Gray & Company, Inc.,

523 So.2d 1359, 1363 (La. App. 2d Cir. 1988).3    The language of

the easement is unambiguous.    The building restriction clause

requires permission from the Corps for structures that “may in

any way interfere” with Corps projects that "may be excavated" or

are “to be built” on the encumbered property.    This language does

not restrict the Corps’ rights to currently planned uses.

     Moreover, the nature of the rights granted to the United

States indicates that those rights apply to future, unplanned


     3
           The parties assume that Louisiana law applies to
determine the scope and effect of the easement. This conclusion
is not axiomatic. For example, when the government acquires
property pursuant to a federal law that does not specify the
appropriate rule of decision, the Supreme Court has held that
federal common law applies to property disputes. United States
v. Little Lake Misere Land Co., 412 U.S. 580, 592-594 (1973).
The court may borrow state law principles to fashion the federal
common law only if the state rules are not hostile to federal
interests. Id. at 595-96; Georgia Power Co. v. 138.30 Acres of
Land, 617 F.2d 1112, 1115-18 (5th Cir. 1980). In the case at
hand, we do not find state law to be adverse to federal
interests.

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uses.    For example, an explicit purpose of the easement is to

enable to Corps to provide flood control, which the Corps

explained necessarily deals with unpredictable events.    If the

Corps could not prevent the building of permanent structures

except by showing a definite plan to alter the channel, the

Corps’ right to flood the property in the future would be

difficult to enforce without endangering life and property.    We

therefore find that the Corps’ denial of the permit based on its

determination that the dynamic nature of the Atchafalaya Basin

"may require" modification of the channel "in the future” was

within its rights under the easement.




V.   Conclusion

     For the foregoing reasons, we affirm the district court’s

determination that § 701(a)(2) of the APA precludes judicial

review of the Corps’ permitting decision as arbitrary and

capricious.    While we reverse to the extent the district court

found that it lacked subject matter jurisdiction over the

Ellisons’ constitutional claims and that they lacked standing to

assert such claims, we agree those claims are meritless in any

event.    Finally, we affirm the district court’s grant of summary

judgment in favor of the Corps in the Laviolette case.




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