### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 09-30660 consolidated w/ 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, U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D July 22, 2 011 Lyle W . Cayce Clerk Case: 09-30660 Document: 00511549218 Page: 1 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 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 cl o s e l y r e l ated appeals arise out of two district court cases: Avoyelles Parish School Board v. United States , N o . 0 8

- 1364 (W.D. La.) (“ Avoyelles I

”), and Avoyelles Parish School Board v. United States , No. 08-1374 (W.D. L a.) (“

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 State s a n d o perated by the United States Fish and Wildlife Service (“FWS”), an agency within the United States Department of Interior (“Department”). T h e S c hool 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 Depar t m ent removed the cases to federal court, and the School Board amended its complaints to state causes of action against the D e p a r t ment 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 l a n d s . 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 “Secti on 16” lands. Prior to Louisiana’s admission to the Union, the sixteenth section of each township was set aside by the federal government “f o r 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 ti tl e o wner 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 themselve s are used for various purposes, such as hunting, fishing, timber, and minerals, with the ultimate benefit o f 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 esta t e s

—
e s t a t e s not accessible directly by public road. The enclosed parcel at issue i n 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 ro a d

. 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 R o a d, that eventually leads through Elder’s lands before reaching the School Board’s. 1 After some time, Elder began obstructing passage a l ong 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 S c h o o l B oard 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—on e f o r each parcel—against the respe ctive a d j oinin g l andowners seeking to enforce its rights

This por tio n of Buck Road wa s als o kn ow n a s Ol d Tram Road. Follow ing a dis put e 1 in the earl y 1990s regar ding pass age over Refuge land s, a new road , the “D og Leg” road , wa s add ed to com ple te the final p ort ion of the pas sage to and thr ough Elde r’s la nds

. Forea seof dis cus sio n, this op inion wi ll tre at the Do g Leg Road as par t of BuckRoa d. 4 Case: 09-30660 Document: 00511549218 Page: 4 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

of passage under state law. Specifically, in A v oy e l le s I , the School Board sued (1) the Department; (2) White Oak Farms, Inc.; (3) Bunkie Elevator and Gin Co.;

a n d ( 4) Laborde Paradise, LLC (“Laborde”). In Avoyelles II , the School Boar d 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 G u i l l o t. 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 au t h o rity to impose conditions on the

use of the School Board’s right of way pursuant to the National Wildlife Refuge System Administration Act of 19 6 6 , as amended, 16 U.S.C. §§ 668dd-668ee (“Refuge Act”). The district court concluded on summary judgment that th e Department could not impose all of its desired restrictions, i n particular the restrictions on hours of use and vehicle types. The Department appeals. Vario u s 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;

sec o n d , w h a t 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 Departm e nt and Elder. As in Avoyelles I , the district court held that the FWS could not impose some of its restriction s o n h o u r s and vehicle types. The Department and Elder appeal.

5 Case: 09-30660 Document: 00511549218 Page: 5 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102 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 rendere d a final appealable judgment in Avoyelles I

. See 28 U.S.C. § 1291 (grantin g j u ri s di ction over “appeals from all final d e c i s i o n s o f 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 a s serted, or completely determines the rights and liabilities of one or more but fewer than all of the parties,” we will ordinarily not treat th e o r d e r 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); Lot t v . Ci t

y of Lubbock, TX

, No. 98-10447, 1999 WL 500689, at *1 (5th Cir. June 18, 1999) (“Lott’s state law claims were implicitl y di s missed for lack of jurisdicti o n . ” )

. 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.
6 Case: 09-30660 Document: 00511549218 Page: 6 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102 B H o w e ver, 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 t h ese 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 participatio n 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 require m e n t t o invoke a federal court’s article III jurisdiction is (1) i nj u ry - in-fact (2) fairly traceable to the defendant’s actions and (3) likely to b e redressed by a favorable decision.” Ensley v. Cody Res., Inc. , 171 F.3d 315, 319 (5th Cir. 1999). The School Board m eets 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 t o t h e a djacent landowners’ unwillingness to grant passage or unwillingness to grant passage without restrictions. A favorable decision w o u l d negate any injury going forward. The Department argues, however, that Louisiana law forbids the School Board from bringing this suit under i t s own name and urges us to vacate the judgments below as having been m a d e without jurisdiction. Although the Department’s supplemental briefing is imprecise w ith regard to the specific nature of the alleged juri s di c t i o nal defect, its argument most resembles a challenge to whether the School Board is t he correct party in interest to bring this c a s e. See F E D
. R. C IV
. 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 , 17 1 F

. 3 d 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 ou r j u ri s diction on appeal. Elder declined to assert this issue even in the r e qu e s t e d supplemental briefing. Any real-party-ininterest 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 F E D
. R. C IV
. P. 19. A person is a “required party” where (A) in that person’s absence, the court cannot accord complete relief a mong existing parties; or (B) that person claims an in t e r e s t 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 pra c tical matter impair or impede the person’s ability to protect the inter est; or (ii) leave an existing party subject to a substa n tial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest. F E D
. R. C IV
. P. 19(a)(1). In the past, we have been willing to consider the omission of an indispensable p a rty 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 p a r t y 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 (19 6 8) (o b serving that, where a defendant fails to raise

n o nj o i n d e r as an issue at trial, “it is quite proper to consider [the defendant’s interest in joinder] forec l osed”). 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 d o e s n o t 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 v a l i d j u d g ment.”)); 4 JAM E S WM
. M O O R E E T AL ., M O O R E ’ S F E D E RAL P RA C T I C E ¶ 19.02[4][b][ii] (observing that consideration of failure to join indispensable party on appeal, where the issue was not raised in the di s t rict 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

. 3 d a t 3 6 7. Nevertheless, the traditional policy of the State has been “to treat [Section 16] lands a s s e p a r a t e and distinct from all other State lands and to place them under the contro l o f t h e school authorities.” Humble , 197 So. at 144. Current statutes reflect school boards’ broad authority to administer those lands. E.g. , 2 LA

. R E V
. S TAT
. AN N
. § 41:638. The School Board is required to administer the l a n ds in accordance with the State’s own educational purposes. See Ebey , 86 1 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.

Adm itt edl y, sc hool boar ds are ins tru c t e d by st atut e to bring cer tain type s of 2 sui t— sp ecif

ical ly, tho sef

or dam ages f

romt res pas s or torecove r tit le—on the St ate’ s behal f. LA

. R EV

. S TAT

. ANN

. §§ 41:9 21-2 3, 41:961- 63; see also Uni on Oi l Co. , 458 F.3dat 367. These st atut es do not aff

ect our indi sp ens able par ty analys is for clai ms unde r the QTA or art icle 689. 9 Case: 09-30660 Document: 00511549218 Page: 9 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102 III The Department argues th a t t h e district court erred by holding in Avoyelles I that the Department could not i mpose its desired restrictions on passage through the Refuge. The Department argues that it has legal authority 3 to impose restrictions o n t h e 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 propert y right in its right of passage thr o u gh t h e 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 activiti e s ar e p erf or m e d b y p er s o ns authorized to manage such area, or unless suc h a c t ivities 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 whenev e r h e determines that such uses are compatible with the major purposes for which such a reas were established . . . ; and (B) permit the use of, or grant easements in, o v e r , across, upon, through, or under any areas within the System for purposes such as . . . roads, including the c o n s truction, operation, and

The De par tm ent als o chall enges the inclu sio n of sim ilar reas o n i n g in Av oye lles II

. 3 Becaus e we conc lude , inf ra , that the dis tri ct cour t err ed in grant ing sum mary judgm ent as to the ro ute in Av oye lles II , a s pec ifi c rulin g about res tri cti ons purs uant tothat rou te w ouldbe pr em atur e. S uff

ice it to say, t hough, t hat the sam e b asi c legal princip les w ouldap ply. 10 Case: 09-30660 Document: 00511549218 Page: 10 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

maintenance th e r e of, 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 regulat i o n s , “ [ a] permit

s h all be required for any person entering a national wildlife refuge, u n l e s s 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

. T h e 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 ac c or d anc e 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 p rovides that “[t]he o w n er of an estate that has no access to

a public road may clai m 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 o n the o w n er of an enclosed estate a legal servitude on the subordi n a t e 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
passa g e b e f

ixed or obtain an agreement from the owner of the subservient

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estate.” Id

. On c e the right of passage is fixed, it becomes a conventional

se rvi tude. Id. (quoting Batton , 2006 WL 568295, at *3 ). The purpose of the School Board’s lawsuits, ther efore, w as 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 p r o p e rty.” 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 h a d o n l y limited means of obtaining a resolution of a title dispute.” Block v. North Dakota

ex rel. Bd. of Univ. & Sch. Lands , 4 6 1 U

. S

. 2 7 3, 280 (1983). Recognizing the problems that arose from such a limitation, C o ngress 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 defend a nt 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 inclu d e d i n the

r e a l p r operty rights adjudicated in a quiet title action.” Kinscherff v. United States , 586 F.2d 159, 161 (10th Cir. 1978) (per curiam); see H.R. R E P
. N O

. 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 s u ed, the terms of its waiver of sovereign immunity define the extent of the court’s jurisdict i o n . ” Mottaz , 476 U.S. at 841 (citing U

n i t e d 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 t h a t 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 Ac t d o e s 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 t h a t f e d e r al law may pre-empt state law even in the absence of an express pre-emption clause. See Geier v. Am. Hon da 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 stat e l aw “actually conflicts with federal law.” English v. Gen. Elec. Co. , 496 U.S. 72, 79 (199 0)

. Wh i le the Refuge Act discusses the Department’s authority to grant easements, the Act does n ot specifically address the scope of its authority to restrict the use of an easement to which an adjoining landown e r i s e n ti tled 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)). The language of the Act, however, makes clear that 4 the Department is permitted to regulate en t ry i nto the physical boundaries of Refuge lands: No person shall disturb, injure, cut, b u rn, remove, destroy, or possess any real or personal property of the United States, including natural growth, in a n y a rea of the System ; . . . or enter, use, or

A s t h e S i xt h Circ uit has poi nted out, the amb iguous gram mar of § 668d d( d) (1) (B) 4 coul d lend its elf to the inte rp ret atio n that it expr es sly autho rizes the De par tm ent to “p erm it the use of

. . . eas em ents in over, acr os s, upon , thr ough, or unde r any a r e as wi thin the Sys tem .” Burl is on , 5 3 3 F.3d at 434. That so me wh at aw kw ard phr ase coul d be read as ref err ing to the De partm ent’ s autho rit y to regula te exis ting eas em ents

. W e agree wi th the SixthCir cuit , thou gh, thatt he bett er reading of the language is that§ 668d d( d) (1) (B) r efe rs to the autho rit y to “gran t eas em ents ” and “p erm it the use of

. . . area s wi thin the Sys tem .” Id. at 435. 13 Case: 09-30660 Document: 00511549218 Page: 13 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

otherwise occupy any such area for any purpose; unless such activities are p erf

ormed by persons authorized to manage such area, or unless s u c h activities are permitted either under subsection (d) o f t h is section or by express provision of the law, proclamation , E x e c u t iv e order, or public land order establishing the area, or amendment thereof . . . . 16 U.S.C. § 668dd(c) (emphasis added). The relevant FWS regulation likewise requir e s a p e r mit 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 f e e s i m p l e i n the swath of land

con s t ituting its pathway through the refuge. See LA

. C IV
. C O D E
. AN N
. art. 646 (“A predial servitud e i s 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. 19 6 7) ( di s tinguishing 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 C o n stitution. U.S. C O N S T ., art. IV, § 3, cl. 2 (“The Congress shall have Power to dispose o f 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-

14 Case: 09-30660 Document: 00511549218 Page: 14 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 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 p ro p erty an alogous 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). Ev e n that presumption, however, cannot overcome a dir e c t c o nflict 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. The district court’s judgment, which was 5 premised on the a s s umption that Louisiana law alone defined the scope of the School Board’s rights, was therefore in error. IV Separately, Elder appeals the distric t c ourt’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 se rvi t ude to the nearest public road, in this instance, Bayou Natchit o c h e s Road (“Bayou Road”), which can be reached by
p a ssage across lands owned by the Arnouvilles. The School Board and oth e r

We note that , in the Sixth Circ uit’ s sim ilar analys is in Burl is on , the court sugges ts 5 that its calc ulus mi ght dif fer if the De par tm ent we re to “evis cer ate [t he adjoi ning land ow ner’ s] pr ope rty right s in an eas em ent, ” rat her than me rely subject use of the eas em ent to reas onable regula tio n. 533 F.3d at 440. A com ple te evis cer atio n of an adjoi ning land ow ner’ s right s mi ght inter a l i a r a i se ques tio ns about the cons tit utio nalit y of the De par tm ent’ s actions unde r the Tak ings Claus e, U. S. C ON ST

. ame nd. V. While the Scho ol Board ’s brie f pas sin gly me ntio ns the Tak ings Claus e in the cont ext of dis cus sin g the hypot heti cal revoc atio n of its per mit, the brie f doe s not argue that the use res tri cti ons alone amo unt to an uncon st itut ional uncom pens ated tak ing. 15 Case: 09-30660 Document: 00511549218 Page: 15 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

landowner-ap p e l lees 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 m a y c o n s ider 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 feasibili t y o f t h e 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 neare s t p ublic road, but the district court gr anted 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 ab s u r d
consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature.” LA

. C IV
. C O D E AN N
. art. 9. The School Board counters that a r ticle 689 must be read alongside article 692, which provides that “[t]he p a s s age generally shall be taken along the shortest rout e f

r o m t h e enclosed estate to the public road at the location least injurious to the intervening lands.” LA

. C IV
. C O D E AN N
. a r t

. 692 (emphasis added). “The term ‘generally’ in La. Civ

. C o d e a r t

. 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 b y th e 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 d e m o n s trate a willingness to consider feasibility, cost, and convenience in affixing an article 689 right of passage. E.g. , Davis v. Culpepper , 794 So. 2 d 6 8 , 74 (La. Ct. App.) (recognizing exceptions to the shortest route
16 Case: 09-30660 Document: 00511549218 Page: 16 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

r ule), cert. denied , 804 So. 2d 646 (2001); see also Cash Point Plant a t i o n 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 us u a l r u l e of relying on the shortest route in certain “exceptional circumstances,” such as “wh en the estate which provides the shortest route is covered by water or is otherwise not a c cessible 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 i s e conomically 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 t o t h e qu e stion of which public road the route will reach. Based on our review of the statut e s a n d c a s es, we agree with the School Board that a court may consider feasibility in fixing a route, and that, in select
cases, feasib i l i t y c o n c e rns 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 t o r oad (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) )

. T h e owner of the enclosed estate is entitled to a right of passage that is “suitable f or the kind of traffic that is reasonably necessary f o r t he use of that estate.” LA

. C IV
. C O D E AN N
. art. 690. In some situations, it will be p hy s i c ally 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 “lan d o wner by permitting full

u ti l i t y of his land” and benefitting “the public by keeping valuable pr operty i n
17 Case: 09-30660 Document: 00511549218 Page: 17 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

commerce.” Vermilion Parish Sch. B d

. v . Broussard , 270 So. 2d 523, 525 (La. 1972). W e a gree, 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 judgmen t in favor of the longer route. The district court c oncluded that the Pug’s Road route was “less pref e r ab l e” than the route over the Refuge and Elder properties for three

reasons: (1) the Arnouville la n ds 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 t o t h e e astern 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 route s w o u l d r equire 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 l o cation of servitudes of passage,” but that such an exception was justi f i e d because that route was “the most just and practicable solution.” Although the

Adm itt edl y, cour ts have so me tim es fixed longer rout es wi thou t an expr es s find ing of 6
a n excep tio nal cir cum st ance . See, e. g. , Perdu e v. Cruse , 38 So. 3d 1235, 1239 ( L a . C t

. Ap p . 2010) (af

fir mi ng rout e along origi nal acc es s pat h beca use that pat h wo uld b e les s injurio us th a n the sho rte st pat h). In this cas e, how ever, the Scho ol Board ’s pr opo se d dep art ure fr om the sho rte r rout e involves mo re than a me re dif fer ence in length—it invol v e s s e l e cti ng an outl et to a dif

fer ent publ ic road and plac ing a burd en on pr ope rty that wo uld not be burd ened at all by t he sho rte r rout e. 18 Case: 09-30660 Document: 00511549218 Page: 18 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

district court conceded that some f a c t s 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 l a n downer 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 car ri e d it s 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 cour t’s setting of route that “required the building of an expensive bridge”). Moreover, Elder p r esented an engineer’s report suggesting that bot h 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 evi d e n c e d emonstrating 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 Ci r . 1 9 9 1 ) ; Russell v. Harrison , 736 F.2d 283, 287 (5th Cir. 1984) (emphasis omitted)). Even assuming, though, t h a t the district court was correct that the Elder/Refuge route was less expensive, Louisiana law does n o t guarantee an enclosed landowner the least expensive route. To the contrary, an exceptional circumstance arises only “when the costs associated with c r ossing the estate which is the shortest distance from the public road are so exceptional that from
19 Case: 09-30660 Document: 00511549218 Page: 19 Date Filed: 07/22/2011No. 09-30660 consolidated w/ Nos. 09-3089 7 & 09-31102

a practical standpoint it is economically unfeasible to build.” Davis , 794 So. 2d 7 at 74. The School Board has not shown that the expense of using the Pug’s Road route was actually prohibitive, as opposed t o merely greater than the School Board woul d p r e f

e r . 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 B o a r d b o r e 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 c a s e s REMANDED for proceedings in accordance with this opinion.

Wher e, as here , the short es t rout e is unavailable, the dist ric t cour t is still oblige d to 7 favor the sho rte st pos si ble rout e. See Cash P o i nt , 920 So. 2d at 979 (ap plying “exc ept ional cir cum st ance s” requ irem ent in favor of sho rte st pos sib le rout e to publ ic road , in cas e wh ere rout e t o n eare r publ ic roadw as bloc ke d by f ede rall y-d es ignate d we tland s)

. 20 Case: 09-30660 Document: 00511549218 Page: 20 Date Filed: 07/22/2011