     Case: 09-30660        Document: 00511549218        Page: 1   Date Filed: 07/22/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                           FILED
                                                                           July 22, 2011

                                         No. 09-30660                     Lyle W. Cayce
                                        consolidated w/                        Clerk
                                   Nos. 09-30897 & 09-31102


SCHOOL BOARD OF AVOYELLES PARISH,

                                                     Plaintiff-Appellee
v.

UNITED STATES DEPARTMENT OF INTERIOR,

                                                     Defendant-Appellant
--------------------------------------------------

SCHOOL BOARD OF AVOYELLES PARISH,

                                                     Plaintiff-Appellee
v.

UNITED STATES DEPARTMENT OF INTERIOR; ELDERWOOD
PROPERTIES,

                                                     Defendants-Appellants

v.

LE CHEVALIER, INCORPORATED, formerly known as, La Nuit, Inc.;
WILLIAM D. ARNOUDVILLE; CARLA BAUDIN ARNOUVILLE; CLAY
EMIL ROBLIN; CYNTHIA GAUTHIER ROBLIN; DAVID JOHN GUILLOT;
ANGELA WYNN GUILLOT,

                                                     Defendant-Appellees
--------------------------------------------------

SCHOOL BOARD OF AVOYELLES PARISH,
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             No. 09-30660 consolidated w/ Nos. 09-30897 & 09-31102


                                             Plaintiff-Appellee

v.

UNITED STATES DEPARTMENT OF INTERIOR,

                                             Defendant-Appellant

v.

LE CHEVALIER, INC., formerly known as La Nuit Inc.; WILLIAM D.
ARNOUDVILLE; CARLA BAUDIN ARNOUVILLE; CLAY EMIL ROBLIN;
CYNTHIA GAUTHIER ROBLIN; DAVID JOHN GUILLOT; ANGELA WYNN
GUILLOT,

                                             Defendants-Appellees



                 Appeals from the United States District Court
                     for the Western District of Louisiana


Before GARZA, STEWART, and HAYNES, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
        These three closely related appeals arise out of two district court cases:
Avoyelles Parish School Board v. United States, No. 08-1364 (W.D. La.)
(“Avoyelles I”), and Avoyelles Parish School Board v. United States, No. 08-1374
(W.D. La.) (“Avoyelles II”).     Each case involves a different tract of land
(respectively, the “Avoyelles I tract” & “Avoyelles II tract”) owned by the
Avoyelles Parish School Board (“School Board”). Neither tract is accessible by
public road, and both share borders with the Lake Ophelia Wildlife Refuge
(“Refuge”). The Refuge is owned by the United States and operated by the
United States Fish and Wildlife Service (“FWS”), an agency within the United
States Department of Interior (“Department”). The School Board filed these

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suits in state court against all adjoining landowners, including the Department,
to fix the School Board’s legal rights of passage to the respective enclosed lands.
The Department removed the cases to federal court, and the School Board
amended its complaints to state causes of action against the Department
pursuant to the Quiet Title Act, 28 U.S.C. § 2409a (“QTA”). In both cases, the
district court fixed rights of passage that burdened Refuge lands. The court
further concluded that, pursuant to the rights of passage, the Department could
not impose certain desired restrictions on the School Board’s actions on Refuge
lands. The Department appeals that holding. The right of passage in Avoyelles
II also burdened the land of Elder Properties (“Elder”). Elder appeals the court’s
choice of route. The three appeals were consolidated. For the following reasons,
we REVERSE both judgments in full and remand for further proceedings.
                                          I
      Both parcels of School Board lands at issue are so-called “Section 16”
lands. Prior to Louisiana’s admission to the Union, the sixteenth section of each
township was set aside by the federal government “for the support of schools
within” the township. Act of April 21, 1806, ch. 39, § 11, 2 Stat. 391, 394. After
Louisiana’s admission to the Union, the title of Section 16 lands was found to lie
with the State. State v. Humble Oil & Ref. Co., 197 So. 140, 143 (La. 1940); see
also Louisiana v. Union Oil Co. of Cal., 458 F.3d 364, 367 (5th Cir. 2006) (“[T]he
State is the fee title owner of the Section 16 lands involved in this law
suit . . . .”). Louisiana treats Section 16 lands as effectively in trust to the State
for purposes of education. Ebey v. Avoyelles Parish Sch. Bd., 861 So. 2d 910, 914
(La. Ct. App. 2003), cert. denied, 871 So. 2d 349 (La. 2004). “The management
of these trust lands is vested by the State in the local school boards.” Id. Section
16 lands themselves are used for various purposes, such as hunting, fishing,
timber, and minerals, with the ultimate benefit of the use going to education.
See, e.g., id. at 911.

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       These two particular parcels of Section 16 lands are enclosed estates—
estates not accessible directly by public road. The enclosed parcel at issue in
Avoyelles I is bounded for approximately one-half mile on the east by the Refuge,
and otherwise adjoins private lands and bayous. The enclosed parcel at issue in
Avoyelles II is bounded for approximately 0.1 mile on the east by the Refuge and
otherwise is bounded by private lands. Historically, access to both parcels
included passage through the Refuge to Lac Long Road, an improved public road.
After some distance on Lac Long Road, the historical paths to the parcels
diverge. To reach the Avoyelles I parcel, one continues through the Refuge along
private roads until one reaches the border of the School Board’s land. To reach
the Avoyelles II parcel, one follows a different private road, Buck Road, that
eventually leads through Elder’s lands before reaching the School Board’s.1
       After some time, Elder began obstructing passage along the Buck Road
route with a locked gate, forcing the School Board to rely on all-terrain vehicles
(“ATVs”) to reach its lands via the Refuge. The FWS, however, eventually
soured on both the ATV use and, more generally, the unrestricted passage
through Refuge lands. It accordingly announced new permit conditions for the
School Board and its invitees. In particular, the FWS sought to restrict the
hours of passage, prohibit overnight parking of cars, and limit the use of some
types of vehicles. The School Board signed an FWS permit regarding access to
the Avoyelles I parcel that contained those restrictions. It did not seek judicial
review of the permit.
       The School Board did, however, file two state court suits—one for each
parcel—against the respective adjoining landowners seeking to enforce its rights



      1
         This portion of Buck Road was also known as Old Tram Road. Following a dispute
in the early 1990s regarding passage over Refuge lands, a new road, the “Dog Leg” road, was
added to complete the final portion of the passage to and through Elder’s lands. For ease of
discussion, this opinion will treat the Dog Leg Road as part of Buck Road.

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of passage under state law. Specifically, in Avoyelles I, the School Board sued
(1) the Department; (2) White Oak Farms, Inc.; (3) Bunkie Elevator and Gin Co.;
and (4) Laborde Paradise, LLC (“Laborde”). In Avoyelles II, the School Board
sued (1) the Department; (2) Bayou Lafourche, Inc.; (3) Elder Properties; (4) Le
Chevalier, Inc.; (5) William and Carla Arnouville; (6) Clay and Cynthia Roblin;
and (7) David and Angela Guillot. The Department removed both cases to
federal court, and in both cases the School Board amended its complaint to add
a claim under the QTA.
      In Avoyelles I, the Department did not dispute the School Board’s
entitlement to a right of way through the Refuge or the route thereof. Rather,
the Department sought to assert FWS’s authority to impose conditions on the
use of the School Board’s right of way pursuant to the National Wildlife Refuge
System Administration Act of 1966, as amended, 16 U.S.C. §§ 668dd-668ee
(“Refuge Act”). The district court concluded on summary judgment that the
Department could not impose all of its desired restrictions, in particular the
restrictions on hours of use and vehicle types. The Department appeals.
      Various landowner-defendants involved in Avoyelles II disputed the
appropriate route for the School Board’s right of passage. The district court
trifurcated its proceedings to decide first, which nearby roads were public;
second, what route the right of way would take; and third, the School Board’s
indemnification obligation. The first stage was resolved after a trial and was not
appealed. In the second stage, the district court granted summary judgment in
favor of a route, based on the historical route of access, through the property of
both the Department and Elder. As in Avoyelles I, the district court held that
the FWS could not impose some of its restrictions on hours and vehicle types.
The Department and Elder appeal.




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                                         II
                                         A
      It is well-settled that we have a duty, if necessary, to examine the basis of
our jurisdiction sua sponte. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
We requested supplemental briefing on two matters that raised potential
jurisdictional hurdles that would foreclose consideration on the merits. We first
asked whether the district court rendered a final appealable judgment in
Avoyelles I. See 28 U.S.C. § 1291 (granting jurisdiction over “appeals from all
final decisions of the district courts of the United States”). The district court
issued a “Memorandum and Judgment” that appears to have resolved the key
issues between the parties, but that neglects to mention the School Board’s claim
against one landowner—Laborde. Where a district court’s order “disposes of one
or more but fewer than all of the claims for relief asserted, or completely
determines the rights and liabilities of one or more but fewer than all of the
parties,” we will ordinarily not treat the order as final and appealable. Tower
v. Moss, 625 F.2d 1161, 1164 (5th Cir. 1980). The Department argues that the
district court’s judgment is nevertheless final and appealable because it plainly
resolves all claims, despite inadvertently failing to list every party specifically.
Upon close review, we agree.
      We have routinely recognized a court’s authority to rule implicitly on
matters, including dismissal of claims. See, e.g., Wilson v. Boise, No. 00-30803,
2001 WL 422621, at *3 (5th Cir. Mar. 30, 2001) (“By failing to address Wilson’s
claim, the magistrate judge implicitly dismissed it.”), cert. denied, 534 U.S. 961
(2001); Lott v. City of Lubbock, TX, No. 98-10447, 1999 WL 500689, at *1 (5th
Cir. June 18, 1999) (“Lott’s state law claims were implicitly dismissed for lack
of jurisdiction.”). The School Board sought just one servitude in Avoyelles I,
which it received. The district court’s grant of a servitude resolved all claims,
regardless of whether all parties were explicitly addressed in the judgment.

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                                        B
      However, we must also consider the jurisdictional effect of a more
troubling feature of this litigation—namely, that the actual title holder of the
lands, the State of Louisiana, has not been made party to these proceedings.
“The management of these trust lands is vested by the State in the local school
boards.” Ebey, 861 So. 2d at 914. Nevertheless, the School Board is not the true
landowner under Louisiana property law. That it brought this suit without the
participation of the true owner raises the question of whether we should consider
the case at all.
      The Department concedes that the School Board has standing in this case
as a constitutional matter. We agree. “The irreducible minimum constitutional
standing requirement to invoke a federal court’s article III jurisdiction is (1)
injury-in-fact (2) fairly traceable to the defendant’s actions and (3) likely to be
redressed by a favorable decision.” Ensley v. Cody Res., Inc., 171 F.3d 315, 319
(5th Cir. 1999). The School Board meets these requirements. Both parcels of
land are administered by the School Board for its own benefit. See Ebey, 861 So.
2d at 914. The School Board’s inability to offer adequate passage to the lands
poses an injury in fact, and that injury is fairly traceable to the adjacent
landowners’ unwillingness to grant passage or unwillingness to grant passage
without restrictions.   A favorable decision would negate any injury going
forward.
      The Department argues, however, that Louisiana law forbids the School
Board from bringing this suit under its own name and urges us to vacate the
judgments below as having been made without jurisdiction. Although the
Department’s supplemental briefing is imprecise with regard to the specific
nature of the alleged jurisdictional defect, its argument most resembles a
challenge to whether the School Board is the correct party in interest to bring
this case. See FED. R. CIV. P. 17(a)(1) (“An action must be prosecuted in the

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name of the real party in interest.”). Real-party-in-interest issues, however,
impose only a “prudential limitation” on us and may be waived by a party’s
failure to raise them. Ensley, 171 F.3d at 320 (holding that real-party-in-interest
objection was waived); see also In re Signal Int’l, LLC, 579 F.3d 478, 487-90 (5th
Cir. 2009) (same). The Department concedes that it failed to identify this issue
until we prompted it to discuss our jurisdiction on appeal. Elder declined to
assert this issue even in the requested supplemental briefing. Any real-party-in-
interest issue is accordingly waived and is no obstacle to our consideration of this
appeal on the merits.
      The only remaining potential obstacle is the possibility that the State was
an indispensable party to this litigation. See FED. R. CIV. P. 19. A person is a
“required party” where
      (A) in that person’s absence, the court cannot accord complete relief
      among existing parties; or (B) that person claims an interest
      relating to the subject of the action and is so situated that disposing
      of the action in the person’s absence may: (i) as a practical matter
      impair or impede the person’s ability to protect the interest; or (ii)
      leave an existing party subject to a substantial risk of incurring
      double, multiple, or otherwise inconsistent obligations because of
      the interest.
FED. R. CIV. P. 19(a)(1). In the past, we have been willing to consider the
omission of an indispensable party despite the fact that none of the litigants
preserved the issue at trial. See McCulloch v. Glasgow, 620 F.2d 47, 51 (5th Cir.
1980). Because no party asserted the issue at the appropriate time, however,
our focus is narrowed. See Provident Tradesmens Bank & Trust Co. v. Patterson,
390 U.S. 102, 110 (1968) (observing that, where a defendant fails to raise
nonjoinder as an issue at trial, “it is quite proper to consider [the defendant’s
interest in joinder] foreclosed”). We look in particular to whether the omitted
third party will be prejudiced by adjudication of the appeal in its absence. See
McCulloch, 620 F.2d at 51 (citing Sierra Club v. Hathaway, 579 F.2d 1162, 1166


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(9th Cir. 1978) (“[W]hen the judgment appealed from does not in a practical
sense prejudicially affect the interests of the absent parties, and those who are
parties have failed to object to non-joinder in the trial court, the reviewing court
will not dismiss an otherwise valid judgment.”)); 4 JAMES WM. MOORE ET AL.,
MOORE’S FEDERAL PRACTICE ¶ 19.02[4][b][ii] (observing that consideration of
failure to join indispensable party on appeal, where the issue was not raised in
the district court, “would seem proper only when necessary to protect the
absentee from serious prejudice”).
           The State of Louisiana, as the landowner, has more than a nominal
interest in the treatment of Section 16 lands. Union Oil Co., 458 F.3d at 367.
Nevertheless, the traditional policy of the State has been “to treat [Section 16]
lands as separate and distinct from all other State lands and to place them
under the control of the school authorities.” Humble, 197 So. at 144. Current
statutes reflect school boards’ broad authority to administer those lands.2 E.g.,
LA. REV. STAT. ANN. § 41:638. The School Board is required to administer the
lands in accordance with the State’s own educational purposes. See Ebey, 861
So. 2d at 915 (“We conclude Section 16 lands are held in trust by the State and
managed by school boards ‘in the manner of a statutory trustee’ for the benefit
of public education.”). The Department has not identified any way in which the
State’s interests meaningfully diverge from the School Board’s, or any other way
in which the State’s absence from this litigation leaves those interests
inadequately protected. Although the absence of the State from this litigation
gives us pause, it does not, in our view, ultimately bar us from considering these
appeals on the merits.



       2
         Admittedly, school boards are instructed by statute to bring certain types of
suit—specifically, those for damages from trespass or to recover title—on the State’s behalf.
LA. REV. STAT. ANN. §§ 41:921-23, 41:961-63; see also Union Oil Co., 458 F.3d at 367. These
statutes do not affect our indispensable party analysis for claims under the QTA or article 689.

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                                             III
       The Department argues that the district court erred by holding in
Avoyelles I that the Department could not impose its desired restrictions on
passage through the Refuge.3 The Department argues that it has legal authority
to impose restrictions on the entry and use of FWS refuge lands, and that any
challenge to the restrictions it seeks to enforce should have come in the form of
a challenge to the School Board’s FWS permit, rather than through a separate
action to fix a servitude. The School Board counters that the Department, like
any property owner, is subject to the ordinary terms of Louisiana property law.
The School Board argues that, under Louisiana law, it has a property right in
its right of passage through the Refuge lands, and the Department cannot
violate that property right by imposing unreasonable restrictions.
       The Refuge Act forbids any person from “enter[ing], us[ing], or otherwise
occupy[ing]” a refuge “unless such activities are performed by persons authorized
to manage such area, or unless such activities are permitted either under [16
U.S.C. § 668dd(d)] or by express provision of the law, proclamation, Executive
order, or public land order establishing the area, or amendment thereof.” 16
U.S.C. § 668dd(c).       The Refuge Act authorizes the Secretary, under such
regulations as he may prescribe, to
             (A) permit the use of any area within the System for any
       purpose, including . . . access whenever he determines that such
       uses are compatible with the major purposes for which such areas
       were established . . . ; and

             (B) permit the use of, or grant easements in, over, across,
       upon, through, or under any areas within the System for purposes
       such as . . . roads, including the construction, operation, and


       3
        The Department also challenges the inclusion of similar reasoning in Avoyelles II.
Because we conclude, infra, that the district court erred in granting summary judgment as to
the route in Avoyelles II, a specific ruling about restrictions pursuant to that route would be
premature. Suffice it to say, though, that the same basic legal principles would apply.

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      maintenance thereof, whenever he determines that such uses are
      compatible with the purposes for which these areas are established.

16 U.S.C. § 668dd(d)(1). Pursuant to the Secretary’s regulations, “[a] permit
shall be required for any person entering a national wildlife refuge, unless
otherwise provided” by Refuge System regulations. 50 C.F.R. § 26.22(b). “The
permittee [must] abide by all the terms and conditions set forth in the permit.”
Id. The issuance of such a permit is an agency action reviewable under the
Administrative Procedure Act (“APA”). See 5 U.S.C. §§ 701-706. Pursuant to
an APA challenge, we will set an agency action aside if we conclude that it was
“arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law.” 5 U.S.C. § 706(2)(A); see also Pub. Citizen, Inc. v. EPA, 343 F.3d 449, 455
(5th Cir. 2003). The School Board did not challenge the permit or its restrictions
under the APA. Instead, the School Board relies on the QTA and article 689 of
the Louisiana Civil Code.
       Article 689 provides that “[t]he owner of an estate that has no access to
a public road may claim a right of passage over neighboring property to the
nearest public road. He is bound to indemnify his neighbor for the damage he
may occasion.” As we have explained:
      [Article 689] is not self-executing. It does however confer on the
      owner of an enclosed estate a legal servitude on the subordinate
      property which entitles the owner to a forced passage for indemnity.
      The enclosed landowner has the right to go into court and demand
      that the passage be fixed . . . .

New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 334 (5th Cir. 2008)
(quoting Batton v. United States, No. 05-1219, 2006 WL 568295, at *3 (W.D. La.
Mar. 8, 2006)). “[T]o obtain the actual, fixed physical manifestation of this right
of passage, the enclosed landowner must either go to court and demand that the
passage be fixed or obtain an agreement from the owner of the subservient


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estate.” Id.    Once the right of passage is fixed, it becomes a conventional
servitude. Id. (quoting Batton, 2006 WL 568295, at *3 ). The purpose of the
School Board’s lawsuits, therefore, was both to vindicate its preexisting rights
and to transform the nature of those rights, from a legal servitude into a fixed
conventional servitude.
      The QTA “provides the exclusive basis for jurisdiction of actions
challenging whether the United States holds title to real property.” United
States v. Mottaz, 476 U.S. 834, 841 (1986). Prior to the law’s enactment, “States
and all others asserting title to land claimed by the United States had only
limited means of obtaining a resolution of a title dispute.” Block v. North Dakota
ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280 (1983). Recognizing the
problems that arose from such a limitation, Congress enacted the QTA for the
purpose of expressly waiving sovereign immunity to suits seeking to adjudicate
disputed titles in real property. Id.; see 28 U.S.C. § 2409a(a) (“The United States
may be named as a party defendant in a civil action under this section to
adjudicate a disputed title to real property in which the United States claims an
interest, other than a security interest or water rights.”). The legislative history
of the QTA “indicates that Congress intended easements to be included in the
real property rights adjudicated in a quiet title action.” Kinscherff v. United
States, 586 F.2d 159, 161 (10th Cir. 1978) (per curiam); see H.R. REP. NO.
92-1559, at 8 (1972), reprinted in 1972 U.S.C.C.A.N. 4552 (“The quieting of title
where the plaintiff claims an estate less than a fee simple—an easement or the
title to minerals—is likewise included in the terms of the proposed statute.”).
      “When the United States consents to be sued, the terms of its waiver of
sovereign immunity define the extent of the court’s jurisdiction.” Mottaz, 476
U.S. at 841 (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). The
waiver of sovereign immunity under the QTA reaches civil actions “to adjudicate
a disputed title to real property.” 28 U.S.C. § 2409a(a). Nothing in the text of

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the QTA suggests that it authorizes a suit to collaterally challenge a permit
issued by a federal agency. Therefore, the only question before us is whether the
School Board’s property rights under article 689 include the right to act without
regard to the terms of an FWS permit. The district court concluded that,
because the Refuge Act does not expressly pre-empt state enclosed estate law,
the School Board’s right of passage exempts it from the permitting requirement.
We disagree.
       It is well-settled that federal law may pre-empt state law even in the
absence of an express pre-emption clause. See Geier v. Am. Honda Motor Co.,
529 U.S. 861, 885 (2000) (rejecting the need for a “specific expression of agency
intent to pre-empt”). Implied pre-emption occurs inter alia where state law
“actually conflicts with federal law.” English v. Gen. Elec. Co., 496 U.S. 72, 79
(1990).    While the Refuge Act discusses the Department’s authority to grant
easements, the Act does not specifically address the scope of its authority to
restrict the use of an easement to which an adjoining landowner is entitled as
a matter of law. See 16 U.S.C. § 668dd(d)(1)(A)-(B); see also Burlison v. United
States, 533 F.3d 419, 434-35 (6th Cir. 2008) (discussing treatment of easements
by § 668dd(d)(1)(A)-(B)).4 The language of the Act, however, makes clear that
the Department is permitted to regulate entry into the physical boundaries of
Refuge lands:
       No person shall disturb, injure, cut, burn, remove, destroy, or
       possess any real or personal property of the United States, including
       natural growth, in any area of the System; . . . or enter, use, or


       4
         As the Sixth Circuit has pointed out, the ambiguous grammar of § 668dd(d)(1)(B)
could lend itself to the interpretation that it expressly authorizes the Department to “permit
the use of . . . easements in over, across, upon, through, or under any areas within the
System.” Burlison, 533 F.3d at 434. That somewhat awkward phrase could be read as
referring to the Department’s authority to regulate existing easements. We agree with the
Sixth Circuit, though, that the better reading of the language is that § 668dd(d)(1)(B) refers
to the authority to “grant easements” and “permit the use of . . . areas within the System.” Id.
at 435.

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      otherwise occupy any such area for any purpose; unless such
      activities are performed by persons authorized to manage such area,
      or unless such activities are permitted either under subsection (d)
      of this section or by express provision of the law, proclamation,
      Executive order, or public land order establishing the area, or
      amendment thereof . . . .

16 U.S.C. § 668dd(c) (emphasis added). The relevant FWS regulation likewise
requires a permit for “any person entering a national wildlife refuge,” unless
otherwise excepted by the Department’s regulations. 50 C.F.R. § 26.22(b)
(emphasis added). The School Board’s servitude is a property right, but it is one
of use; the School Board does not own fee simple in the swath of land
constituting its pathway through the refuge. See LA. CIV. CODE. ANN. art. 646
(“A predial servitude is a charge on a servient estate for the benefit of a
dominant estate. The two estates belong to different owners.”); see also Blanda
v. Rivers, 210 So. 2d 161, 166 (La. Ct. App. 1968) (distinguishing between types
of real property interest under Louisiana law); Welsh S. Oil Co. v. Scurlock Oil
Co., 201 So. 2d 376, 378 (La. Ct. App. 1967) (distinguishing between “the land
described” and “a servitude across it”). Use of the School Board’s right of
passage, therefore, unambiguously involves entering an “area of the System,” in
the words of the statute, and “entering a national wildlife refuge,” in the words
of the regulations. The School Board’s use of the passage is therefore subject to
regulation by the Department.
      Moreover, the School Board concedes that imposing restrictions on entry
and use, even by easement holders, is well within Congress’s powers under the
Property Clause of the Constitution. U.S. CONST., art. IV, § 3, cl. 2 (“The
Congress shall have Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property belonging to the United
States . . . .”); accord Burlison, 533 F.3d at 432-33 (permitting regulation of use
of an easement under the Property Clause); Hale v. Norton, 476 F.3d 694, 699-


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             No. 09-30660 consolidated w/ Nos. 09-30897 & 09-31102

700 (9th Cir.) (same), cert. denied sub nom. Hale v. Kempthorne, 552 U.S. 1076
(2007); United States v. Jenks, 22 F.3d 1513, 1517 (10th Cir. 1994) (same). The
Property clause grants the United States “power over its own property analogous
to the police power of the several states.” Kleppe v. New Mexico, 426 U.S. 529,
540 (1976) (quoting Camfield v. United States, 167 U.S. 518, 525 (1897)).
Requiring a permit for entry and use is an exercise of that police power.
       The law of property is one of those “areas of law traditionally reserved to
the states,” where a strong presumption against pre-emption applies. Franks
Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404, 407 (5th Cir. 2010) (en banc)
(internal citation and quotation marks omitted).                 Even that presumption,
however, cannot overcome a direct conflict with federal law.                      Insofar as
Louisiana law would permit the School Board to enter, use, or otherwise occupy
Refuge lands in violation of FWS regulations, Louisiana law is in direct conflict
with federal law and is pre-empted.5 The district court’s judgment, which was
premised on the assumption that Louisiana law alone defined the scope of the
School Board’s rights, was therefore in error.
                                              IV
       Separately, Elder appeals the district court’s ruling in Avoyelles II with
regard to the route of the School Board’s conventional servitude. It argues first
that Louisiana law only permits a servitude to the nearest public road, in this
instance, Bayou Natchitoches Road (“Bayou Road”), which can be reached by
passage across lands owned by the Arnouvilles. The School Board and other

       5
          We note that, in the Sixth Circuit’s similar analysis in Burlison, the court suggests
that its calculus might differ if the Department were to “eviscerate [the adjoining landowner’s]
property rights in an easement,” rather than merely subject use of the easement to reasonable
regulation. 533 F.3d at 440. A complete evisceration of an adjoining landowner’s rights might
inter alia raise questions about the constitutionality of the Department’s actions under the
Takings Clause, U.S. CONST. amend. V. While the School Board’s brief passingly mentions the
Takings Clause in the context of discussing the hypothetical revocation of its permit, the brief
does not argue that the use restrictions alone amount to an unconstitutional uncompensated
taking.

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            No. 09-30660 consolidated w/ Nos. 09-30897 & 09-31102

landowner-appellees counter that Louisiana law permits courts to consider
feasibility in affixing a right of passage, and if passage to the nearest road is not
feasible, the court may consider routes to other roads. Elder argues, in the
alternative, that the School Board failed to show that passage to Bayou Road via
the Arnouville lands was unfeasible. The School Board argues that there are no
genuine issues of material fact with regard to the feasibility of the various
alternative routes, that it showed that the Bayou Road route was unfeasible, and
that summary judgment was therefore appropriate.
      Article 689 grants the owner of an enclosed estate “right of passage over
neighboring property to the nearest public road.” (Emphasis added.) It is
undisputed that Bayou Road is physically the nearest public road, but the
district court granted passage to farther-away Lac Long Road. Elder argues that
that ruling violated the command, under the Louisiana Civil Code, that “[w]hen
a law is clear and unambiguous and its application does not lead to absurd
consequences, the law shall be applied as written and no further interpretation
may be made in search of the intent of the legislature.” LA. CIV. CODE ANN. art.
9. The School Board counters that article 689 must be read alongside article
692, which provides that “[t]he passage generally shall be taken along the
shortest route from the enclosed estate to the public road at the location least
injurious to the intervening lands.” LA. CIV. CODE ANN. art. 692 (emphasis
added). “The term ‘generally’ in La. Civ. Code art. 692 is an acknowledgment
that there are exceptions to the general rule, and it recognizes that the nature
and location of the right of passage are governed by the circumstances of each
case.” May v. Miller, 941 So. 2d 661, 666 (La. Ct. App. 2006) (quoting Pearson
v. Theriot, 534 So. 2d 35, 36 (La. Ct. App. 1988)). The School Board suggests that
Louisiana cases demonstrate a willingness to consider feasibility, cost, and
convenience in affixing an article 689 right of passage. E.g., Davis v. Culpepper,
794 So. 2d 68, 74 (La. Ct. App.) (recognizing exceptions to the shortest route

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           No. 09-30660 consolidated w/ Nos. 09-30897 & 09-31102

rule), cert. denied, 804 So. 2d 646 (2001); see also Cash Point Plantation
Equestrian Ctr., Inc. v. Shelton, 920 So. 2d 974, 977 (La. Ct. App. 2006) (same).
Specifically, for example, Davis and Cash Point suggest that a court may depart
from the usual rule of relying on the shortest route in certain “exceptional
circumstances,” such as “when the estate which provides the shortest route is
covered by water or is otherwise not accessible year-round” or “when the costs
associated with crossing the estate which is the shortest distance from the public
road are so exceptional that from a practical standpoint it is economically
unfeasible to build.” Davis, 794 So. 2d at 74. Elder concedes that article 692 does
provide flexibility with regard to the details of the route, but argues that that
flexibility does not extend to the question of which public road the route will
reach.
      Based on our review of the statutes and cases, we agree with the School
Board that a court may consider feasibility in fixing a route, and that, in select
cases, feasibility concerns may warrant fixing a route to a road that is not
physically the nearest to the enclosed estate. See, e.g., May, 941 So. 2d at 667,
670 (affirming trial court decision to fix passage on route to road (Big Lake)
other than the nearest public road (Lisle Peters)); Cash Point, 920 So. 2d at 976,
978-79 (affirming trial court decision to fix passage on route to road (Bodcau
Station) other than the nearest public road (Espanita)). The owner of the
enclosed estate is entitled to a right of passage that is “suitable for the kind of
traffic that is reasonably necessary for the use of that estate.” LA. CIV. CODE
ANN. art. 690. In some situations, it will be physically impossible, legally
impossible, or simply wholly impracticable to fix an adequate route with a direct
outlet to the nearest public road. Assuring that a landowner in such a situation
can nevertheless make productive use of its land is essential to the purposes of
the enclosed estate provisions: benefitting the “landowner by permitting full
utility of his land” and benefitting “the public by keeping valuable property in

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             No. 09-30660 consolidated w/ Nos. 09-30897 & 09-31102

commerce.” Vermilion Parish Sch. Bd. v. Broussard, 270 So. 2d 523, 525 (La.
1972). We agree, however, with the Louisiana courts that have held that
exceptional circumstances are required before a court may depart substantially
from the ordinary practice of fixing the shortest route to the nearest public road.
See Cash Point, 920 So. 2d at 977; Davis, 794 So. 2d at 74.6
       Elder argues that, even if a route may sometimes lead to a public road
other than the closest, the “Pug’s Road” route to Bayou Road is feasible, and the
district court therefore erred by granting summary judgment in favor of the
longer route. The district court concluded that the Pug’s Road route was “less
preferable” than the route over the Refuge and Elder properties for three
reasons: (1) the Arnouville lands over which the Pug’s Road route would cross
are cultivated farm land, and therefore a new road would have to be built over
those lands; (2) the Pug’s Road route would only provide access to the eastern
portion of the School Board’s lands, and the School Board would need to build a
bridge on its property to access the western portion; and (3) the route to Lac
Long Road had been relied on historically to provide access to the School Board
lands. The district court concluded that, while both routes would require
physical improvements, “[c]ommon sense informs this court that refurbishment
of existing roads is less costly and injurious than construction of wholly new
roads.” The court recognized that fixing the conventional servitude across Elder
and the Refuge lands would be “an exception to the general rules pertaining to
location of servitudes of passage,” but that such an exception was justified
because that route was “the most just and practicable solution.” Although the

       6
         Admittedly, courts have sometimes fixed longer routes without an express finding of
an exceptional circumstance. See, e.g., Perdue v. Cruse, 38 So. 3d 1235, 1239 (La. Ct. App.
2010) (affirming route along original access path because that path would be less injurious
than the shortest path). In this case, however, the School Board’s proposed departure from
the shorter route involves more than a mere difference in length—it involves selecting an
outlet to a different public road and placing a burden on property that would not be burdened
at all by the shorter route.

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             No. 09-30660 consolidated w/ Nos. 09-30897 & 09-31102

district court conceded that some facts were disputed, it concluded that the
disputed facts were not material and granted summary judgment in favor of the
Elder/Refuge route.
      Based on our review of the record and case law, we cannot agree that the
School Board demonstrated that, as a matter of law, the route over the Refuge
and Elder’s land was the only feasible route. The enclosed landowner seeking
a route other than the shortest bears the burden of showing that an exceptional
circumstance justifies the alternative route. Davis, 794 So. 2d at 74. The School
Board argues that it has carried its burden by demonstrating the expenses
necessary to render the Pug’s Road route adequate. A route is not unfeasible,
however, simply because it requires expensive improvements. See May, 941 So.
2d at 668-69 (affirming district court’s setting of route that “required the
building of an expensive bridge”). Moreover, Elder presented an engineer’s
report suggesting that both proposed routes would require expensive
improvements and estimating that the overall improvements necessary for use
of the Elder/Refuge route would actually be more expensive. Although a district
court considering motions for summary judgment in a non-jury case has
“somewhat greater discretion to consider what weight it will accord the
evidence,” it is not free to disregard “significant evidence demonstrating the
existence of a genuine fact issue.” Johnson v. Diversicare Afton Oaks, LLC, 597
F.3d 673, 675 (5th Cir. 2010) (quoting In re Placid Oil Co., 932 F.2d 394, 397 (5th
Cir. 1991); Russell v. Harrison, 736 F.2d 283, 287 (5th Cir. 1984) (emphasis
omitted)).
      Even assuming, though, that the district court was correct that the
Elder/Refuge route was less expensive, Louisiana law does not guarantee an
enclosed landowner the least expensive route. To the contrary, an exceptional
circumstance arises only “when the costs associated with crossing the estate
which is the shortest distance from the public road are so exceptional that from

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             No. 09-30660 consolidated w/ Nos. 09-30897 & 09-31102

a practical standpoint it is economically unfeasible to build.”7 Davis, 794 So. 2d
at 74. The School Board has not shown that the expense of using the Pug’s Road
route was actually prohibitive, as opposed to merely greater than the School
Board would prefer. Whether a cost is prohibitive depends on context, in
particular regarding the value of productive use of the land over time. See May,
941 So. 2d at 668-69 (evaluating whether cost of bridge was prohibitive in light
of the value of the enclosed land). We cannot conclude, as the district court did,
that the disputed or unresolved facts in this case are merely incidental,
especially where the School Board bore the burden of proof. Accordingly, the
grant of summary judgment to the School Board was in error.
                                                V
       For the foregoing reasons, the district court’s judgments in Avoyelles I and
Avoyelles II are REVERSED and the cases REMANDED for proceedings in
accordance with this opinion.




       7
         Where, as here, the shortest route is unavailable, the district court is still obliged to
favor the shortest possible route. See Cash Point, 920 So. 2d at 979 (applying “exceptional
circumstances” requirement in favor of shortest possible route to public road, in case where
route to nearer public road was blocked by federally-designated wetlands).

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