Belle Co. v. United States Army Corps of Engineers

Case: 13-30262 Document: 00512716453 Page: 1 Date Filed: 07/30/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 30, 2014

No. 13-30262

Lyle W. Cayce

Clerk

BELLE COMPANY, L.L.C.; KENT RECYCLING SERVICES, L.L.C.,

Plaintiffs-Appellants

v.

UNITED STATES ARMY CORPS OF ENGINEERS,

Defendant-Appellee

Appeal from the United States District Court

for the Middle District of Louisiana

Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.

HIGGINSON, Circuit Judge:

Plaintiff-Appellant Belle Company, L.L.C. owns property in the Parish

of Assumption. Plaintiff-Appellant Kent Recycling, L.L.C. has an option to

purchase the property in the event that it can be used as a solid-waste landfill.

In February 2012, Defendant-Appellee United States Army Corps of Engineers

(“Corps”) issued a jurisdictional determination (“JD”) stating that the property

contains wetlands that are subject to regulation under the Clean Water Act.

Belle and Kent (collectively, “Belle”) sued, alleging that the JD is unlawful and

should be set aside. The district court dismissed the suit for lack of subject-

matter jurisdiction, concluding that the JD is not “final agency action” and

therefore is not reviewable under the Administrative Procedure Act. For the

reasons that follow, we AFFIRM.

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No. 13-30262

I.

The Clean Water Act (“CWA”) prohibits, among other things, the

“discharge of any pollutant” into “navigable waters” unless authorized by a

permit. 33 U.S.C. §§ 1311(a), 1344. The CWA defines navigable waters as “the

waters of the United States.” 33 U.S.C. § 1362(7). Under Section 404 of the

CWA, 33 U.S.C. § 1344, the Corps has authority to issue permits, termed 404

permits, for the discharge of dredged or fill materials into navigable waters.

The regulations that govern the permitting process authorize the Corps to

consult with potential permit applicants prior to receiving, processing, and

issuing or denying individual permits. 33 C.F.R. § 325.1(b). The regulations

also authorize the Corps “to issue formal determinations concerning the

applicability of the Clean Water Act . . . to activities or tracts of land and the

applicability of general permits or statutory exemptions to proposed activities.”

33 C.F.R. §§ 320.1(a)(6); 325.9. The Corps has an administrative appeal process

through which it reviews an initial JD. 33 C.F.R. § 331.

Belle’s property has a long history. In 1991, the Corps informed Belle

that the property correctly was designated as prior-converted cropland by the

United States Department of Agriculture (“DOA”) and thus did not constitute

wetlands under the CWA. In 1993, the Corps and the United States

Environmental Protection Agency (“EPA”) promulgated a final rule that

excluded property designated as prior-converted cropland from the definition

of waters of the United States. 33 C.F.R. § 328.3(a)(8). In 1995, the DOA

informed Belle that the property was prior-converted cropland and not a

wetland under the 1990 Food and Security Act. In 2003, however, the Corps

informed Belle that any prior correspondence as to the property’s wetland

status was not valid and that the property did constitute wetlands subject to

Corps regulation. Subsequently, the Natural Resources Conservation Service

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(“NRCS”) issued a technical determination, based on earlier findings, that the

property was commenced-conversion cropland.

In 2005, NRCS and the Corps jointly promulgated guidance, which

stated that a previous designation as prior-converted cropland would be valid

if a property was devoted to agricultural use but not if it had changed to a

nonagricultural use (the “change-in-use policy”). In 2009, the Corps released

an Issue Paper and Memorandum (collectively, the “Stockton Rules”) for JDs

made in the Jacksonville District in Florida. These documents applied the 2005

Guidance to five properties in the Everglades and found that they were not

prior-converted croplands because they had changed from an agricultural to a

nonagricultural use.

In May 2009, Belle submitted to the Corps an application for a 404

permit to “conduct clearing and excavation activities to facilitate construction

of a regional landfill” on the property. In June 2009, the Louisiana Department

of Environmental Quality (“LDEQ”) sent a letter to Belle, stating that the

Corps had made a determination that a large portion of the proposed landfill

site was considered wetlands. LDEQ further stated that Belle’s Louisiana

solid-waste permit would require a major modification that reflected the

wetlands requirements in Louisiana regulations, LAC 33:VII.709.A.7-8, and

that Belle should submit its major-modification application no later than 120

days after it received a decision on its 404 permit application. Belle

subsequently abandoned its 404 permit application.

Almost two years later, in January 2011, on Belle’s request and after a

field inspection by a district engineer, the Corps issued an initial JD, which

stated that part of the property was wetlands and subject to the CWA such

that, as Belle apparently previously had sought, a 404 permit would be

required prior to filling the site. Belle appealed the decision through the

Corps’s administrative appeal process. After an appeal meeting, site visit, and

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review, the division engineer found that portions of Belle’s administrative

appeal had merit. On remand, after additional investigation and review, the

Corps upheld the determination that part of the property is wetlands.

Belle sued in district court for declaratory and injunctive relief to set

aside the JD as unlawful. The district court granted the Corps’s motion to

dismiss on the ground that it lacked subject-matter jurisdiction over Belle’s

claims because the JD is not final agency action reviewable in court under the

Administrative Procedure Act (“APA”). Belle timely appealed. On appeal, Belle

argues that the district court has subject-matter jurisdiction to review its three

claims: (1) that the JD is arbitrary and capricious and should be invalidated;

(2) that the administrative appeal process, as applied to Belle,

unconstitutionally deprived Belle of liberty and property interests without due

process of law; and (3) that the Corps promulgated the change-in-use policy

without the proper APA rulemaking procedures, and in violation of an

injunction, and improperly applied that policy in the JD.

II.

We review de novo a district court’s dismissal for lack of subject-matter

jurisdiction pursuant to Rule 12(b)(1). Ctr. for Biological Diversity, Inc. v. BP

Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013). “The United States may not

be sued except to the extent it has consented to such by statute.” Shanbaum v.

United States, 32 F.3d 180, 182 (5th Cir. 1994). The APA provides such a

waiver for claims “seeking relief other than money damages.” 5 U.S.C. § 702;

see King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 416 (5th Cir. 2013);

Armendariz–Mata v. U.S. Dep't of Justice, Drug Enforcement Admin., 82 F.3d

679, 682 (5th Cir. 1996). Where, as here, no relevant agency statute provides

for judicial review, the APA authorizes judicial review only of “final agency

action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704.

If there is no final agency action, a court lacks subject-matter jurisdiction. Am.

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Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999); see also Sierra Club

v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000) (“Absent a specific and final

agency action, we lack jurisdiction to consider a challenge to agency conduct.”).

“As a general matter, two conditions must be satisfied for agency action

to be final: First, the action must mark the consummation of the agency’s

decisionmaking process—it must not be of a merely tentative or interlocutory

nature. And second, the action must be one by which rights or obligations have

been determined, or from which legal consequences will flow.” Bennett v. Spear,

520 U.S. 154, 177–78 (1997) (internal quotation marks and citations omitted).

“In evaluating whether a challenged agency action meets these two conditions,

this court is guided by the Supreme Court’s interpretation of the APA’s finality

requirement as ‘flexible’ and ‘pragmatic.’” Qureshi v. Holder, 663 F.3d 778, 781

(5th Cir. 2011) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149–50 (1967)).

“The APA’s judicial review provision also requires that the person seeking APA

review of final agency action have ‘no other adequate remedy in court.’” Sackett

v. EPA, 132 S. Ct. 1367, 1372 (2012) (quoting 5 U.S.C. § 704).

In Sackett, 132 S. Ct. at 1371, the Supreme Court revisited the issue of

final agency action under the CWA. The Sacketts filled a portion of their

undeveloped property with dirt and rocks in preparation for building a house.

Id. at 1370. The EPA then issued a compliance order that contained findings

that the property contained wetlands under the CWA and that the Sacketts

had discharged fill material into the wetlands. Id. at 1370–71. The order

directed the Sacketts immediately to undertake restoration of the property per

an EPA plan and to provide to the EPA access to the site and all documentation

relating to the site. Id. at 1371. The Sacketts disagreed with the order, but the

EPA denied their request for a hearing. Id. The Sacketts sued, and the Ninth

Circuit affirmed the district court’s dismissal for lack of subject-matter

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jurisdiction, holding that the CWA precludes pre-enforcement review of

compliance orders. Id.

The Supreme Court reversed, holding that the CWA does not preclude

judicial review under the APA. Id. at 1374. The Court concluded that an EPA

compliance order is a final agency action under the APA. Id. As to Bennett

prong one, the order “marks the consummation of the agency’s decisionmaking

process” because “the Findings and Conclusions that the compliance order

contained were not subject to further agency review.” Id. at 1372. Furthermore,

“[t]he mere possibility that an agency might reconsider in light of informal

discussion and invited contentions of inaccuracy does not suffice to make an

otherwise final agency action nonfinal.” Id. As to Bennett prong two, the order

determines rights or obligations because “[b]y reason of the order, the Sacketts

have the legal obligation to restore their property according to an agency-

approved Restoration Work Plan, and must give the EPA access to their

property and to records and documentation related to the conditions at the

Site.” Id. at 1371 (internal quotation marks and citation omitted). Further,

legal consequences flow from issuance of the order because “the order exposes

the Sacketts to double penalties in a future enforcement proceeding. It also

severely limits the Sacketts’ ability to obtain a permit for their fill from the

Army Corps of Engineers. The Corps’ regulations provide that, once the EPA

has issued a compliance order with respect to certain property, the Corps will

not process a permit application for that property unless doing so is clearly

appropriate.” Id. at 1371–72. Finally, the Sacketts had no other adequate

remedy in court because “[i]n Clean Water Act enforcement cases, judicial

review ordinarily comes by way of a civil action brought by the EPA under 33

U.S.C. § 1319. But the Sacketts cannot initiate that process, and each day they

wait for the agency to drop the hammer, they accrue, by the Government’s

telling, an additional $75,000 in potential liability.” Id. at 1372. The Court

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emphasized: “The other possible route to judicial review—applying to the

Corps of Engineers for a permit and then filing suit under the APA if a permit

is denied—will not serve either. The remedy for denial of action that might be

sought from one agency does not ordinarily provide an adequate remedy for

action already taken by another agency.” Id. at 1372.

Belle argues that the Court’s decision in Sackett compels the conclusion

that the JD is reviewable final agency action.

A.

First, to be final the JD “must mark the consummation of the agency’s

decisionmaking process.” Bennett, 520 U.S. at 177–78. Where an agency has

“asserted its final position on the factual circumstances underpinning” its

action, that is an indication that it marks the consummation of the

decisionmaking process. See Alaska Dep’t of Envtl. Conservation v. EPA, 540

U.S. 461, 483 (2004). Where an action has proceeded through an

administrative appeal process and is not subject to further agency review, that

too is an indication that the action marks the consummation of the

decisionmaking process. See Peoples Nat’l Bank v. Office of Comptroller of

Currency of U.S., 362 F.3d 333, 337 (5th Cir. 2004) (concluding that agency

notification was not consummation of decisionmaking process where regulated

party had not yet utilized administrative appeal process); Exxon Chem. Am. v.

Chao, 298 F.3d 464, 467 (5th Cir. 2002) (concluding that agency remand order

was not consummation of decisionmaking process because there remained a

possibility that regulated party might prevail in its administrative action).

Prior to Sackett, in Fairbanks N. Star Borough v. U.S. Army Corps of

Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008), the Ninth Circuit concluded that a

JD marks the consummation of the Corps’s decisionmaking process because

the Corps “has asserted its ultimate administrative position regarding the

presence of wetlands on Fairbanks’ property on the factual circumstances upon

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which the determination is predicated.” The JD marks the consummation of a

formal procedure for parties to solicit the Corps’s “official position” about the

scope of CWA jurisdiction. Id. at 592. The district court below also concluded

that the JD is the consummation of the Corps’s decisionmaking process

because there will be no further agency decisionmaking on the issue.

The Court’s reasoning in Sackett as to Bennett prong one reinforces the

conclusion that the JD is the consummation of the Corps’s decisionmaking

process. A JD is “a written Corps determination that a wetland and/or

waterbody is subject to regulatory jurisdiction under” the CWA. 33 C.F.R.

§ 331.2. Once a JD has proceeded through the administrative appeal process,

the final JD is not subject to further formal review by the agency. See 33 C.F.R.

§ 331.9. Corps regulations further state that “the public can rely on that

determination as a Corps final agency action.” 51 F.R. 41,206-01 (Nov. 1986)

(citing 33 C.F.R. § 320.1(a)(6)). The Corps’s consummation argument—that the

JD is one step at the beginning of the administrative process, that it entails

the possibility of further proceedings on a permit application, and that it could

change over time—rests on too broad a level of generality. The Court in Sackett

rejected that argument, reasoning that the findings and conclusions in the EPA

compliance order, which included a finding that the property was subject to

CWA jurisdiction, “were not subject to further agency review.” Sackett, 132 S.

Ct. at 1372. Furthermore, “[t]he mere possibility that an agency might

reconsider in light of informal discussion and invited contentions of inaccuracy

does not suffice to make an otherwise final agency action nonfinal.” Id.

Through the JD, the Corps has asserted its final position on the facts

underlying jurisdiction—that is, the presence or absence on Belle’s property of

waters of the United States as defined in the CWA. See Alaska Dep’t of Envtl.

Conservation, 540 U.S. at 483; Fairbanks, 543 F.3d at 593 (finding that a JD

“announces the Corps’ considered, definite and firm position about the

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presence of jurisdictional wetlands on [the] property at the time it is

rendered”). This is evidenced by the fact that the JD was subject to, and

proceeded through, an extensive administrative appeal process within the

Corps and hence is termed a “final” JD. See 33 C.F.R. § 331.9; Peoples Nat’l

Bank, 362 F.3d at 337; Exxon Chem., 298 F.3d at 467.

We conclude that the JD marks the consummation of the Corps’s

decisionmaking process as to the question of jurisdiction.

B.

Second, to be final the JD must be an action “by which rights or

obligations have been determined, or from which legal consequences will flow.”

Bennett, 520 U.S. at 178 (internal quotation marks and citation omitted).

Where “the action sought to be reviewed may have the effect of forbidding or

compelling conduct on the part of the person seeking to review it, but only if

some further action is taken by the [agency],” that action is nonfinal and

nonreviewable because it “does not of itself adversely affect complainant but

only affects his rights adversely on the contingency of future administrative

action.” Rochester Tel. Corp. v. United States, 307 U.S. 125, 129–30 (1939); 1 see

also FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 240–41 (1980) (concluding

that agency’s issuance of complaint, which stated it had “reason to believe”

regulated party was violating statute, was not final agency action but merely

“a threshold determination that further inquiry is warranted and that a

complaint should initiate proceedings”); Luminant Generation Co., L.L.C. v.

EPA, ___ F.3d ___, Nos. 12–60694, 13–60538, 2014 WL 3037692, at *3 (5th Cir.

2014) (concluding that EPA’s issuance of notice of violation of Clean Air Act

1 In Rochester, 307 U.S. at 30, the Court listed as examples of such nonfinal action:

“[O]rders of the Interstate Commerce Commission setting a case for hearing despite a

challenge to its jurisdiction, or rendering a tentative or final valuation under the Valuation

Act, although claimed to be inaccurate, or holding that a carrier is within the Railway Labor

Act and therefore amenable to the National Mediation Board.” (internal citations omitted).

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was not final agency action because, inter alia, “adverse legal consequences

will flow only if the district court determines that Luminant violated the Act

or the SIP” and “if the EPA issued notice and then took no further action,

Luminant would have no new legal obligation imposed on it and would have

lost no right it otherwise employed”); AT & T Co. v. EEOC, 270 F.3d 973, 975

(D.C. Cir. 2001) (“[The agency’s action] must have inflicted an actual, concrete

injury upon the party seeking judicial review. Such an injury typically is not

caused when an agency merely expresses its view of what the law requires of

a party, even if that view is adverse to the party.” (internal quotation marks

and citation omitted)).

Prior to Sackett, all of the courts, including ours, that had considered the

question held that a JD does not determine rights or obligations or have legal

consequences and thus is not final agency action. See Fairbanks, 543 F.3d at

597; Greater Gulfport Properties, LLC v. U.S. Army Corps of Eng’rs, 194 F.

App’x 250, 250 (5th Cir. 2006) (per curiam) (unpublished); Comm’rs of Pub.

Works of City of Charleston v. United States, No. 93-2061, 30 F.3d 129, at *2

(4th Cir. 1990) (per curiam) (unpublished); Coxco Realty, LLC v. U.S. Army

Corps of Eng’rs, Civil Action No. 3:06-CV-416-S, 2008 WL 640946, at *4–5

(W.D. Ky. Mar. 4, 2008); St. Andrews Park, Inc. v. U.S. Dep’t of Army Corps of

Eng’rs, 314 F. Supp. 2d 1238, 1244–45 (S.D. Fla. 2004); Child v. United States,

851 F. Supp. 1527, 1534–35 (D. Utah 1994); Hampton Venture No. One v.

United States, 768 F. Supp. 174, 175–76 (E.D. Va. 1991); Route 26 Land Dev.

Co. v. U.S. Gov’t, 753 F. Supp. 532, 539–40 (D. Del. 1990); Lotz Realty Co. v.

United States, 757 F. Supp. 692, 695–97 (E.D. Va. 1990).

Since Sackett, the few courts, including the district court below, that

have considered the question have reasoned to the same conclusion. See

Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs, 963 F. Supp. 2d 868, 873–78 (D.

Minn. 2013) (holding that a Corps JD is not final agency action); Nat’l Ass’n of

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Homebuilders v. EPA, 956 F. Supp. 2d 198, 209–212 (D.D.C. 2013) (explaining

that a Corps determination that a property contains traditional navigable

waters is practically indistinguishable from a JD and thus is not final agency

action).

Indeed, the Court’s reasoning in Sackett as to Bennett prong two

highlights the determinative distinctions between a JD and an EPA

compliance order. First, and foremost, the compliance order independently

imposed legal obligations because it ordered the Sacketts promptly to restore

their property according to an EPA-approved plan and give the EPA access to

site records and documentation. Sackett, 132 S. Ct. at 1371–72. By contrast,

the JD is a notification of the property’s classification as wetlands but does not

oblige Belle to do or refrain from doing anything to its property. It notifies Belle

that a 404 permit will be required prior to filling, and we are cognizant that

the Corps’s permitting process can be costly for regulated parties. See Rapanos

v. United States, 547 U.S. 715, 721 (2006). But even if Belle had never

requested the JD and instead had begun to fill, it would not have been immune

to enforcement action by the Corps or EPA. See Luminant, 2014 WL 3037692,

at *3 (“The Clean Air Act and the Texas SIP, not the notices, set forth

Luminant’s rights and obligations.”). Indeed, prior to Belle’s request for a JD,

the Corps informed Belle that even if no JD issued, that “does not alleviate

your responsibility to obtain the proper DA permits prior to working in

wetlands that may occur on this property.” 2

Belle argues that the JD has consequences under Louisiana law—

namely, that LDEQ will require Belle to modify the state permit it previously

acquired for its property. Putting aside that the LDEQ letter Belle cites is

2As noted previously, Belle did commence the permit process but subsequently

abandoned it for reasons not apparent in the existing record.

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dated 2009, years prior to the 2012 JD that Belle challenges, state-agency

action does not transform nonfinal federal-agency action into final action for

APA purposes. See Ocean Cnty. Landfill Corp. v. EPA, 631 F.3d 652, 656 (3d

Cir. 2011) (“W]here a state actor relies upon a federal agency’s notice, the state

action does not convert the notice into a final agency act under the APA.”)

(citing Hindes v. FDIC, 137 F.3d 148, 163 (3d. Cir. 1988) (citing Air California

v. U.S. Dep’t of Transp., 654 F.2d 616, 621 (9th Cir.1981))); Resident Council

of Allen Parkway Village v. U.S. Dep’t of Housing & Urban Dev., 980 F.2d 1043,

1055–56 (5th Cir. 1993) (concluding that HUD interpretation was not final

agency action despite the fact that it resulted in actions by state housing

authority). Cf. Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown,

875 F.2d 453, 456 (5th Cir. 1989) (explaining that APA is “a route through

which private plaintiffs can obtain federal court review of the decisions of

federal agencies” and concluding that plaintiffs could not challenge state-

agency action even if based on challenged Corps decisions that allegedly

violated a statute). Even assuming that LDEQ’s letter could make federal

action final, the letter requests that Belle submit a permit-modification request

only “after the 404 permit decision” from the Corps because the state

requirements “may be impacted by requirements of a 404 permit.” Thus, this

alleged consequence depends on, and does not inure until, the Corps’s decision

on a future permit application. See Rochester Tel., 307 U.S. at 130; Exxon

Chem., 298 F.3d at 467.

Second, the compliance order in Sackett itself imposed, independently,

coercive consequences for its violation because it “expose[d] the Sacketts to

double penalties in a future enforcement proceeding,” Sackett, 132 S. Ct. at

1372. By contrast, the JD erects no penalty scheme. It imposes no penalties on

Belle. And neither the JD nor Corps regulations nor the CWA require Belle to

comply with the JD. See Luminant, 2014 WL 3037692, at *3 (“[N]othing in the

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Clear Air Act requires a regulated entity to ‘comply’ with a notice.”). Belle

argues that one factor in calculating civil and criminal penalties in a future

enforcement action is Belle’s “good faith efforts to comply” with the CWA,

which could be undermined because the JD alerts Belle to the presence of

wetlands on its property. See 33 U.S.C. §1319. However, the use of the JD in

assessing future penalties is speculative, whereas in Sackett the order caused

penalties to accrue pending restoration of the property. See Sackett, 132 S. Ct.

at 1372; Fairbanks, 543 F.3d at 595 (noting that § 1319(d) does not mention

JDs or assign them specific evidentiary weight, so the speculative penalties

could be a practical effect but not a legal consequence) (citing Ctr. for Auto

Safety v. NHTSA, 452 F.3d 798, 811 (D.C. Cir. 2006)); see also Energy Transfer

Partners v. F.E.R.C., 567 F.3d 134, 141–42 (5th Cir. 2009) (explaining that the

“expense and annoyance of litigation,” although a substantial burden, “is

different in kind and legal effect from the burdens attending what heretofore

has been considered to be final agency action”) (quoting Standard Oil, 449 U.S.

at 242, 244).

Third, whereas the compliance order in Sackett severely limited the

Sacketts’ ability to obtain a 404 permit from the Corps, see Sackett, 132 S. Ct.

at 1372, the JD operates oppositely, informing Belle of the necessity of a 404

permit to avoid enforcement action. Significantly for the Court in Sackett,

Corps regulations state: “No permit application will be accepted nor will the

processing of an application be continued when the district engineer is aware

of enforcement litigation that has been initiated by other Federal, state, or

local regulatory agencies, unless he determines that concurrent processing of

an after-the-fact permit application is clearly appropriate.” 33 C.F.R. §

326.3(e)(1)(iv). By contrast, Corps regulations do not impose any such

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restriction with regard to the JD; pertinent here, the JD itself does not state

that it will limit a party’s ability to obtain a permit. 3

Fourth and finally, the compliance order in Sackett determined that the

Sacketts’ property contained wetlands and that they had discharged material

into those wetlands in violation of the CWA. See Sackett, 132 S. Ct. at 1369–

70. In other words, the order resolved that the Sacketts had violated the CWA

and hence were subject to penalties and had to restore their property. See

Sackett, 132 S. Ct. at 1373 (“As the text (and indeed the very name) of the

compliance order makes clear, the EPA’s deliberation over whether the

Sacketts are in violation of the Act is at an end.”). Indeed, the EPA compliance

order was based, in part, on a finding that the Sacketts’ property contained

wetlands subject to CWA jurisdiction, see id. at 1370; yet the Court did not rely

on that jurisdictional finding as the basis for its decision but relied instead on

the consequences that flowed from the compliance order. See id. at 1371–72.

3 Belle points to Corps regulations that state: “A determination pursuant to this

authorization shall constitute a Corps final agency action.” § 320.1(a)(6). However, Corps

regulations clarify:

[E]ven final agency actions must be “ripe” before a court can review them.

In the past, a number of courts have held that jurisdictional

determinations are not ripe for review until a landowner who disagrees

with a JD has gone through the permitting process. The Federal

Government believes this is the correct result, and nothing in today’s

rule is intended to alter this position. . . . JDs are not necessarily “final”

even as an administrative matter. . . . Accordingly, we have decided not

to address in this rulemaking when a JD should be considered a final

agency action.

65 F.R. 16,486-01 (Mar. 28, 2000). Thus, the Corps does not interpret the above language to

mean final agency action for APA purposes. Under Auer v. Robbins, 519 U.S. 452, 461 (1997),

an agency’s interpretation of its own regulation receives deference unless it is plainly

erroneous or inconsistent with the regulation. See also Decker v. Nw. Envtl. Def. Ctr., 133 S.

Ct. 1326, 1337 (2013); Elgin Nursing and Rehabilitation Ctr. v. U.S. Dept. Of Health and

Human Servs., 718 F.3d 488, 492–93 (5th Cir. 2013). Regardless, the regulations’ language

is not dispositive. See Exxon Chem., 298 F.3d at 467 n.2; Veldhoen v. U.S. Coast Guard, 35

F.3d 222, 225–26 (5th Cir. 1994); Hampton Venture, 768 F. Supp. at 175; Lotz Realty, 757 F.

Supp. at 697.

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By contrast, the JD does not state that Belle is in violation of the CWA,

much less issue an order to Belle to comply with any terms in the JD or take

any steps to alter its property. See Luminant, 2014 WL 3037692, at *3

(distinguishing between an EPA notice of violation of the Clean Air Act and

the compliance order in Sackett and concluding that the former was not final

agency action). Moreover, while the Corps, responsive to Belle’s own inquiry,

has made a determination as to the presence of wetlands on Belle’s property,

it renders no regulatory opinion as to Belle’s ultimate goal to build a landfill.

Belle could still obtain a Corps permit to fill, without the presumption

(attached to an EPA compliance order) against issuing a permit. See 33 C.F.R.

§ 326.3(e)(1)(iv). If Belle does not obtain a permit, Corps regulations allow Belle

to initiate suit in court, where Belle may challenge the permit decision as well

as the underlying jurisdiction. See 33 C.F.R. § 331.12. Belle’s proposed

framework, where it could first request a wetlands determination and then

seek judicial reassessment of that regulatory determination but also later seek

separate review of any permit decision based on that jurisdiction, would

disrupt the regulatory review system already in place. See Dresser v. Meba

Med. & Benefits Plan, 628 F.3d 705, 708 (5th Cir. 2010) (“To determine whether

the APA’s default rule of review is applicable, we look to the agency-specific

statutes and rules.”); Beall v. United States, 336 F.3d 419, 427 n.9 (5th Cir.

2003), abrogated on other grounds, Hincks v. United States, 550 U.S. 501 (2007)

(“Congress did not intend the general grant of review in the APA to duplicate

existing procedures for review of agency action.”) (citing Bowen v.

Massachusetts, 487 U.S. 879 (1988)). Furthermore, authorizing judicial review

of JDs, to the extent that it would disincentivize the Corps from providing

them, would undermine the system through which property owners can

ascertain their rights and evaluate their options with regard to their properties

before they are subject to compliance orders and enforcement actions for

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violations of the CWA. The above distinctions between the compliance order

and the JD effectuate both prongs of the Bennett test: the action cannot be only

a final decision, it must be also a final decision that “alter[s] the legal regime”

to which the regulated party is subject. See Bennett, 520 U.S. at 178. We

conclude that, under that standard and under current doctrine, especially

Sackett, the JD is not an action by which rights or obligations have been

determined, or from which legal consequences will flow. 4

We hold that the JD is not reviewable final agency action under the APA

and affirm the district court’s dismissal of this claim for lack of subject-matter

jurisdiction.

III.

Belle argues second that the Corps’s administrative appeal process

deprived Belle of its liberty and property interests without due process of law.

The district court did not reach this claim, explaining: “Because the Court finds

that it lacks subject matter jurisdiction, it is not necessary to address Plaintiffs’

remaining claims.” However, the district court dismissed all of the claims

4 To be final, an agency action also must be one for which there is “no other adequate

remedy in a court.” 5 U.S.C. § 704; see Sackett, 132 S. Ct. at 1372. Even assuming that the

JD met Bennett prong two, Belle may have an adequate judicial remedy because it could

apply for a Corps permit and, if the Corps denies the permit, challenge the denial and the

underlying jurisdiction in court. See 33 C.F.R. § 331.12. In Sackett, the Court found that there

was no adequate alternative to challenge the EPA compliance order for two reasons. First,

the Sacketts could not initiate a challenge to the compliance order because in CWA

enforcement cases the EPA initiates the civil action, and in the meantime the Sacketts had

to wait and accrue potential liability. Id. Second, the process of applying for a Corps permit

and then filing suit if the Corps denied the permit was not adequate because “[t]he remedy

for denial of action that might be sought from one agency does not ordinarily provide an

adequate remedy for action already taken by another agency.” Id. Here, the Corps issued the

JD, so it is not the case that the only alternative remedy is one provided by a different agency.

See C.F.R. §§ 331.10, 331.12. Furthermore, as noted above, Belle is not incurring any liability

and Belle can bring a challenge in court if the Corps denies a future permit application. See

33 C.F.R. § 331.12. Thus, the Corps JD is distinguishable from the EPA compliance order on

this ground as well. See Sackett, 132 S. Ct. at 1372; Dresser, 628 F.3d at 708; Beall, 336 F.3d

at 427 n.9.

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without prejudice, thus impliedly dismissing this claim for lack of subject-

matter jurisdiction under 12(b)(1) and not on the merits under 12(b)(6). Brooks

v. Raymond Dugat Co. L C, 336 F.3d 360, 362 (5th Cir. 2003). We review the

decision to dismiss for lack of subject-matter jurisdiction de novo. Ctr. for

Biological Diversity, 704 F.3d at 421. We may affirm on any ground supported

by the record. Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014).

Furthermore, “the issue of subject matter jurisdiction is subject to plenary

review by this court.” Taylor-Callahan-Coleman Counties Dist. Adult

Probation Dep’t v. Dole, 948 F.2d 953, 956 (5th Cir. 1991).

Belle raised a facial challenge to the Corps’s administrative appeal

process below, but on appeal raises only an as-applied challenge to the Corps’s

conduct in Belle’s administrative appeal process. Belle argues that this due-

process claim provides an independent basis for jurisdiction under 28 U.S.C. §

1331. Section 1331 provides federal-question jurisdiction for the due-process

claim. See Stockman v. FEC, 138 F.3d 144, 151 n.13 (5th Cir. 1998) (noting

that APA does not create an independent grant of jurisdiction but that

jurisdiction exists under § 1331 and that APA then serves as waiver of

sovereign immunity). However, “28 U.S.C. §1331 is a general jurisdiction

statute and does not provide a general waiver of sovereign immunity.”

Shanbaum, 32 F.3d at 182 (citing Voluntary Purchasing Groups, Inc. v. Reilly,

889 F.2d 1380, 1385 (5th Cir. 1989)). Thus, Belle must prove that the

government waived its immunity. See Taylor-Callahan-Coleman, 948 F.2d at

956 (explaining that § 1331 afforded jurisdiction over plaintiff’s due process

and APA claims against Department of Labor but that plaintiff still had to

establish a waiver of sovereign immunity under APA’s final-agency-action

requirement); see also Smart v. Holder, 368 F. App’x 591, 593 (5th Cir. 2010)

(unpublished) (affirming dismissal of due-process claim against DOJ where

none of the statutes plaintiff cited provided waiver of immunity) (citing Boehms

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v. Crowell, 139 F.3d 452, 462–63 (5th Cir. 1998); S. Sog, Inc. v. Roland, 644

F.2d 376, 380 (5th Cir. Unit A May 1981)). 5

In neither its complaint nor its briefs on appeal does Belle cite a

statutory waiver of sovereign immunity for its due-process claim or argue that

it is a claim under the APA. The only waiver of sovereign immunity that Belle

cites is the APA. Cf. Doss v. S. Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir.

1987) (“[W]here a complaint fails to cite the statute conferring jurisdiction, the

omission will not defeat jurisdiction if the facts alleged in the complaint satisfy

the jurisdictional requirements of the statute.”) (quoting Hildebrand v.

5 In a Rule 28(j) letter, Belle cites Alabama-Coushatta Tribe of Tex. v. United States,

No. 13-40644, 2014 WL 3360472, at *3–4 (5th Cir. 2014), where this court held that the APA,

5 U.S.C. § 702, provides a waiver of sovereign immunity for two distinct types of claims: (1)

claims where judicial review is sought only pursuant to the general provisions of the APA;

and (2) claims where judicial review is sought pursuant to a separate statutory or

nonstatutory cause of action. As to the latter type of waiver, this court held, “there only needs

to be ‘agency action’ as set forth by 5 U.S.C. § 551(13).” Id. at *4. Belle does not articulate the

effect of this case on its due-process claim, and, in any event, it does not affect the outcome

here. This court in Alabama-Coushatta relied on Sheehan v. Army & Air Force Exch. Serv.,

619 F.2d 1132, 1139 (5th Cir. 1980), rev’d on other grounds, 456 U.S. 728 (1982), and Trudeau

v. Federal Trade Comm’n, 456 F.3d 178, 186–89 (D.C. Cir. 2006). In Sheehan, 619 F.2d at

1139, this court held that § 702 waives sovereign immunity for statutory and nonstatutory

causes of action, without discussing whether the final-agency-action requirement of § 704

applies to those claims. In Trudeau, 456 F.3d at 345–46, the D.C. Circuit held that the final-

agency-action requirement does not restrict § 702’s waiver of sovereign immunity at all;

instead, it operates as a (12)(b)(6) merits restriction rather than as a 12(b)(1) jurisdiction

restriction. Alabama-Coushatta, see 2014 WL 3360472, at *4, bifurcates the 12(b)(1) analysis

and holds that for the APA to waive sovereign immunity for a claim under the general

provisions of the APA, the claim must challenge a “final agency action” under § 704, whereas

for the APA to waive sovereign immunity for a claim under other statutory or nonstatutory

provisions, the claim must challenge only “agency action” as defined in § 551(13). Even

following Alabama-Coushatta on its own terms, therefore, Belle still would have to show that

the JD is final agency action to survive a 12(b)(6) dismissal of its due-process claim, which,

for the reasons explained above, it has not done. Furthermore, to the extent that is the

approach required by Alabama-Coushatta, it is in tension with the Fifth Circuit cases cited

above, which establish that a lack of “final agency action” is a 12(b)(1) deficiency. Finally, in

both Sackett, 132 S. Ct. at 1371, and Taylor-Callahan-Coleman, 948 F.2d at 956, the plaintiffs

challenged the agency actions on both APA and due-process grounds, and the Supreme Court

and an earlier panel of this court conducted the final-agency-action analysis without

bifurcating the two claims or proceeding to the merits of either.

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Honeywell, 622 F.2d 179, 181 (5th Cir. 1980)). Belle does not argue or establish

that the administrative appeal process that culminated in the JD, as applied

to Belle, is final agency action. See Taylor-Callahan-Coleman, 948 F.2d at 956;

Stockman, 138 F.3d at n.13. Accordingly, we affirm the district court’s

dismissal of this claim for lack of subject-matter jurisdiction.

IV.

Belle argues third that the Corps promulgated the change-in-use policy

in the Stockton Rules, in violation of APA rulemaking requirements, and that

the Corps violated a nationwide injunction when it applied the Rules in the JD

for Belle’s property. The district court similarly did not reach this claim. Again,

we may affirm on any ground in the record. Gilbert, 751 F.3d at 311.

On their face the Stockton Rules apply only to the Corps’s Jacksonville

District, and even then only to five applications for approved JDs that were

pending at the time. Nothing in the Stockton Rules purports to apply to Belle’s

property or even to the New Orleans District. Further, nothing in the JD

purports to apply the Stockton Rules to Belle’s property. Indeed, although the

Corps division engineer in Belle’s administrative appeal found no evidence that

the district engineer had used the Stockton Rules, in an abundance of caution

he prohibited the district engineer from using them on remand.

Additionally, the Stockton Rules govern properties classified as prior-

converted cropland, and Belle’s property was classified as commenced-

conversion cropland at least as early as 2003. Belle cites New Hope Power Co.

v. U.S. Army Corps of Eng’rs, 746 F. Supp. 2d 1272 (S.D. Fl. 2010), which held

that the Stockton Rules were final agency action that violated the APA’s

rulemaking requirements and enjoined the Corps from using them. But the

New Hope Power court characterized the Stockton Rules as governing prior-

converted cropland. Id. at 1274. Moreover, Belle was not a party to that case.

Thus, it is not clear how any action with regard to the Stockton Rules would

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redress Belle’s alleged injury. See Match-E-Be-Nash-She-Wish Band of

Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (“This Court has

long held that a person suing under the APA must satisfy . . . Article III’s

standing requirements.”); United States v. Holy Land Foundation for Relief

and Dev., 445 F.3d 771, 780 (5th Cir. 2006) (explaining that to establish

redressability, a plaintiff must show that there is a substantial likelihood that

the requested relief will remedy the alleged injury-in-fact); see also League of

United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th

Cir. 2011) (citing Bennett, 520 U.S. at 167) (explaining that it must be likely,

as opposed to merely speculative, that a favorable decision would redress the

injury); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–06 (1998)

(finding failure of redressability requirement where none of the specific items

of relief sought and none the Court could envision under general request would

redress plaintiff’s losses). To the extent that what Belle in fact challenges is

the Corps’s change-in-use policy, the Corps promulgated that policy not in the

Stockton Rules but in its 2005 Guidance. Belle does not challenge that

Guidance on appeal, and in any event such a challenge is barred by the statute

of limitations. 28 U.S.C. § 2401(a).

If the Stockton Rules are relevant to the determination of this case, it is

only insofar as Belle challenges their alleged presence in the JD. As identified

to us, the record does not bear out that proposition; moreover, the JD is not

reviewable final agency action for the reasons discussed above. Accordingly, we

affirm the district court’s dismissal of this claim for lack of subject-matter

jurisdiction.

V.

We AFFIRM the district court’s judgment.

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