Tin Cup, LLC v. US Army Corps of Engineers

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIN CUP, LLC, an Alaska No. 17-35889

limited liability company,

Plaintiff-Appellant, D.C. No.

4:16-cv-00016-TMB

v.

UNITED STATES ARMY CORPS OPINION

OF ENGINEERS,

Defendant-Appellee.

Appeal from the United States District Court

for the District of Alaska

Timothy M. Burgess, Chief Judge, Presiding

Argued and Submitted June 13, 2018

Anchorage, Alaska

Filed September 21, 2018

Before: Sidney R. Thomas, Chief Judge, and Consuelo M.

Callahan and Carlos T. Bea, Circuit Judges.

Opinion by Chief Judge Thomas;

Concurrence by Judge Bea

2 TIN CUP V. USACE

SUMMARY*

Environmental Law

The panel affirmed the district court’s summary judgment

in favor of the U.S. Army Corps of Engineers in a lawsuit that

sought to set aside the Corps’ decision for an excavation

permit; and held that language in a 1993 appropriations act

did not require the Corps to continue to use a 1987 guidance

manual for delineating wetlands under the Clean Water Act.

The Clean Water Act prohibits “the discharge of any

pollutant” without an appropriate permit; this prohibition

applies to “the waters of the United States;” and the term

“pollutant” includes dredged and fill material. 33 U.S.C.

§§ 1311(a), 1362(7), and 1362(6), (12). In 1987, the Corps

issued a guidance document concerning the wetland

delineation process. The 1993 Budget Act directed that the

Corps continue to use the 1987 Manual.

The Corps issued plaintiff a permit that would allow it to

discharge gravel fill into 118 acres of wetlands, but included

mitigation conditions that plaintiff found onerous. Plaintiff

argued that the 1992 and 1993 Budget Acts required the

Corps to continue to use the 1987 Manual and its definition

of a growing season, without considering a 2007 Alaska

Supplement.

The panel held that it would only conclude that an

appropriations act made permanent changes in substantive

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

TIN CUP V. USACE 3

law if Congress was clear about its intentions. The panel

further held that, absent a clear statement of futurity, a

provision in an appropriations act is only in force for the

fiscal year of the appropriation. The panel concluded that

plaintiff had not shown a clear statement from Congress that

the 1993 Budget Act enacted a mandatory, permanent change

in substantive law.

Judge Bea concurred in the majority’s ultimate conclusion

that the district court did not err in granting summary

judgment to the Corps, but he wrote separately because he

would hold that the 1993 Budget Act contained sufficient

words of futurity to bind the Corps after the 1993 fiscal year.

COUNSEL

Jeffrey W. McCoy (argued), Damien M. Schiff, and James S.

Burling, Pacific Legal Foundation, Sacramento, California,

for Plaintiff-Appellant.

John D. Gunter II (argued), Michael T. Gray, and Amanda S.

Berman, Trial Attorneys; Eric Grant, Deputy Assistant

Attorney General; Jeffrey H. Wood, Acting Assistant

Attorney General; Environment & Natural Resources

Division, United States Department of Justice, Washington,

D.C.; for Defendant-Appellee.

4 TIN CUP V. USACE

OPINION

THOMAS, Chief Judge:

In this case, we consider what should be considered the

growing season in Alaska’s permafrost and, specifically,

whether language in a 1993 appropriations act requires the

U.S. Army Corps of Engineers (the “Corps”) to continue to

use a 1987 guidance manual for delineating wetlands under

the Clean Water Act. We conclude that it does not, and we

affirm the district court.

I

A

The Clean Water Act (the “Act”) prohibits “the discharge

of any pollutant” without an appropriate permit. 33 U.S.C.

§ 1311(a). This prohibition applies to “the waters of the

United States,” 33 U.S.C. § 1362(7), and the term “pollutant”

includes dredged and fill material, such as gravel or sand,

33 U.S.C. §§ 1362(6), (12). In the period relevant to this

case, regulations defined “waters of the United States” to

include wetlands that are adjacent to other covered waters.

33 C.F.R. § 328.3(a)(7). The Act allows the Corps to issue

permits for discharging dredged or fill material into waters of

the United States. 33 U.S.C. § 1344(a).

In 1987, the Corps issued a guidance document “to

provide users with guidelines and methods to determine

whether an area is a wetland for purposes of” the Act. U.S.

Army Corps of Eng’rs, Corps of Engineers Wetlands

Delineation Manual (Jan. 1987) (the “1987 Manual”) at 1.

The 1987 Manual directs that the wetland delineation process

TIN CUP V. USACE 5

be guided by three criteria: hydrophytic vegetation, hydric

soils, and wetland hydrology. Under the 1987 Manual,

satisfaction of the wetland hydrology criterion generally

requires the presence of a “growing season,” defined as a

season in which soil temperature at 19.7 inches below the

surface is above 5°C. In 1989, the Corps joined other federal

agencies in adopting a new manual to supersede the 1987

Manual. Fed. Interagency Comm. for Wetland Delineation,

Federal Manual for Identifying and Delineating

Jurisdictional Wetlands (Jan. 1989) (the “1989 Manual”).

The 1989 Manual employed less stringent methods for

delineating methods wetlands than the 1987 Manual.

In response to complaints from business groups and

legislators, Congress limited the use of the 1989 Manual in

the Energy and Water Development Appropriations Act of

1992, Pub. L. No. 102-104, 105 Stat. 510 (Aug. 17, 1991)

(the “1992 Budget Act”). The 1992 Budget Act prohibited

the use of funds to delineate wetlands under the 1989 Manual

“or any subsequent manual not adopted in accordance with

the requirements for notice and public comment of the rule-

making process of the Administrative Procedure Act.”

105 Stat. at 518. The 1992 Budget Act also required the

Corps to use the 1987 Manual to delineate any wetlands in

ongoing enforcement actions or permit application reviews.

Id.

The following year, Congress enacted the Energy and

Water Development Appropriations Act of 1993, Pub. L.

102-377, 106 Stat. 1315 (Oct. 2, 1992) (the “1993 Budget

Act”). The 1993 Budget Act stated in pertinent part:

None of the funds in this Act shall be used to

identify or delineate any land as a “water of

6 TIN CUP V. USACE

the United States” under the Federal Manual

for Identifying and Delineating Jurisdictional

Wetlands that was adopted in January 1989 or

any subsequent manual adopted without

notice and public comment.

Furthermore, the Corps of Engineers will

continue to use the Corps of Engineers 1987

Manual, as it has since August 17, 1991, until

a final wetlands delineation manual is

adopted.

106 Stat. at 1324.1

At the same time that Congress mandated continued use

of the 1987 Manual, Congress appropriated money to the U.S.

Environmental Protection Agency (“EPA”) to contract with

the National Academy of Sciences to analyze federal

wetlands regulation. See Department of Veterans Affairs and

Housing and Urban Development and Independent Agencies

Appropriations Act of 1993, Pub. L. 102-389, 106 Stat. 1571

(Oct. 6, 1992); H.R. Rep. No. 102-710, at 51 (1992); H.R.

Conf. Rep. No. 102-902 at 41. The ensuing report, published

in 1995, recommended a number of changes to the Corps’

wetlands delineation process. See Nat’l Research Council.,

Comm. on Characterization of Wetlands, Wetlands:

Characteristics & Boundaries (1995) at 3. One suggestion

was that the 1987 Manual’s approach to “growing season”

should either be abandoned altogether or replaced by region-

specific criteria for wetland delineation. Id. at 102. In

response, the Corps issued a series of regional “supplements”

1

Following the parties’ form, we refer to these two paragraphs as the

“first paragraph” and the “second paragraph,” respectively.

TIN CUP V. USACE 7

to the 1987 Manual. These supplements provide region-

specific criteria for wetland delineation. To date, the Corps

has issued ten such supplements covering the entire United

States.

The Corps published its regional supplement for Alaska

in 2007. U.S. Army Corps of Eng’rs, Regional Supplement

to the Corps of Engineers Wetland Delineation Manual:

Alaska Region (Version 2.0) (Sept. 2007) (the “Alaska

Supplement”). Most relevant to this lawsuit, the Alaska

Supplement used a different indicator for determining the

presence of a growing season than used in the 1987 Manual.

Rather than focusing on soil temperature, the Alaska

Supplement’s definition focuses on “vegetation green-up,

growth, and maintenance as an indicator of biological activity

occurring both above and below ground.” Alaska

Supplement at 48.

B

Tin Cup, LLC (“Tin Cup”) owns a 455-acre parcel in

North Pole, Alaska, which it holds for its parent company,

Flowline Alaska. Flowline Alaska seeks to use the parcel for

the temporary storage of pipe and other manufactured

material. The project will require the excavation and laying

down of gravel material, which is a regulated “pollutant”

under the Clean Water Act. See 33 U.S.C. § 1362(6).

In 2004, Tin Cup obtained a permit from the Corps for the

relocation project. Tin Cup proceeded to clear approximately

130 acres from the site, but by 2008, the company had not

commenced gravel extraction or fill placement. Thus, in

2008, Tin Cup submitted a new permit application. The

Corps examined the extent of wetlands on the site and issued

8 TIN CUP V. USACE

a new jurisdictional determination in November 2010,

concluding that wetlands were present on 351 acres of Tin

Cup’s 455-acre site, including about 200 acres of permafrost.

In December 2010, Tin Cup administratively appealed the

Corps’ jurisdictional determination. Tin Cup argued that the

site’s permafrost cannot qualify as wetlands under the 1987

Manual. Tin Cup argued that, under the 1987 Manual, an

area can only be considered a wetland if it has a growing

season, and that the 1987 Manual defines a growing season as

the season in which soil temperature at 19.7 inches

belowground level is at or above 5°C. Tin Cup claimed that

the “discontinuous permafrost” on its property did not reach

that temperature, and thus that there was no growing season.

In August 2011, the Corps review officer rejected Tin

Cup’s permafrost argument. The officer ruled in his appeal

decision that the Alaska Supplement “recognizes the

existence of permafrost and the need to rely instead upon

locally or regionally developed methods to determine

growing season dates . . . as well as by direct observation of

vegetation.” Under the Alaska Supplement, the officer noted,

“soil temperature at 19.7 inches below the surface is

essentially irrelevant to determining the growing season in

Alaska.”

In October 2012, the Corps issued Tin Cup an initial

proffered permit. The permit would allow Tin Cup to

discharge gravel fill into 118 acres of wetlands (out of the

165 acres that Tin Cup had applied to fill). However, the

permit included mitigation conditions that Tin Cup found

onerous. Tin Cup lodged further administrative appeals,

which were unsuccessful. The Corps proffered in November

TIN CUP V. USACE 9

2013 a final permit to Tin Cup, subject to the same mitigation

conditions, and it affirmed that permit in March 2015.

In May 2016, Tin Cup initiated the present lawsuit,

seeking to set aside the Corps’ permitting decision. On its

motion for summary judgment, Tin Cup argued that the 1992

and 1993 Budget Acts continue to require that the Corps use

the 1987 Manual and its definition of a growing season,

without considering the Alaska Supplement. The district

court granted summary judgment to the Corps, holding that

most of the language in the 1992 and 1993 Budget Acts was

limited to the use of funds appropriated in those statutes. Tin

Cup appeals that order.

II

We review the district court’s grant of summary judgment

de novo. Ocean Advocates v. U.S. Army Corps of Eng’rs,

402 F.3d 846 (9th Cir. 2005). We agree with the district

court that the 1993 Budget Act does not require the Corps to

continue to use the 1987 Manual’s guidelines to delineate

wetlands, and we affirm.

A

While appropriations acts are “Acts of Congress” that can

change substantive law, we interpret them somewhat

differently than other statutes. An appropriation of funds is

generally not permanent or available continuously without an

express provision. 31 U.S.C. § 1301(c). The same rule

applies to provisions of appropriations acts altering

substantive law. Such provisions “are generally only ‘in

force during the fiscal year of the appropriation and do not

work a permanent change in the substantive law.’” Nat. Res.

10 TIN CUP V. USACE

Def. Council v. U.S. Forest Serv., 421 F.3d 797, 806 n.19 (9th

Cir. 2005) (quoting Seattle Audubon Soc’y v. Evans, 952 F.2d

297, 304 (9th Cir. 1991)). This principle dates to the

Supreme Court’s opinion in Minis v. United States, 40 U.S.

(15 Pet.) 423 (1841), in which Justice Story stated:

It would be somewhat unusual, to find

engrafted upon an act making special and

temporary appropriations, any provision

which was to have a general and permanent

application to all future appropriations. Nor

ought such an intention on the part of the

legislature to be presumed, unless it is

expressed in the most clear and positive

terms, and where the language admits of no

other reasonable interpretation.

Id. at 445. There is thus “a very strong presumption” that if

an appropriations act changes substantive law, it does so only

for the fiscal year for which the bill was passed. Bldg. &

Constr. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273

(D.C. Cir. 1992).

To rebut this presumption, a party must point to “a clear

statement of ‘futurity,’ such as ‘hereafter.’” Nat. Res. Def.

Council, 421 F.3d at 806 n.19; see also United States v. Vulte,

233 U.S. 509, 514 (1914) (holding that appropriations acts

did not permanently change substantive law because they did

not contain “words of prospective intention”). We will only

conclude that an appropriations act has made a permanent

change to substantive law if Congress is clear about its

intentions. Absent a clear statement of futurity, a provision

in an appropriations act is only in force for the fiscal year of

the appropriation.

TIN CUP V. USACE 11

B

The provision at issue in the 1993 Budget Act does not

contain a clear statement of futurity. It is significant that the

provision does not contain the word “hereafter.” “Hereafter”

is the most common word of futurity. Government

Accountability Office, Principles of Federal Appropriations

Law (4th ed. 2016 rev.) at 2-86. Congress used “hereafter”

throughout the 1993 Budget Act to identify the continuing

availability of certain appropriations, see 106 Stat. at 1325,

1330–32, 1338, 1339, 1342–43, and continuing prohibitions

on certain types of spending, see 106 Stat. at 1331, 1343.

When Congress uses particular language in one part of a

statute and omits it elsewhere, “it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” San Francisco v. U.S. Dep’t of

Transp., 796 F.3d 993, 999 (9th Cir. 2015) (quoting Russello

v. United States, 464 U.S. 16, 23 (1983)). Even if the

provision’s second paragraph constituted a command that the

Corps use the 1987 Manual, the absence of “hereafter”

suggests that Congress did not intend the provision to bind

the Corps indefinitely.

Tin Cup argues that the words “will” and “until” in the

provision’s second paragraph are words of futurity. No

authority exists holding that those words in an appropriations

bill, absent more, indicate futurity. Nonetheless, Tin Cup

argues that if “will” and “until” were not construed as words

of futurity, then the second paragraph would be superfluous.

If Congress only meant to mandate the use of the 1987

Manual in fiscal year 1993, Tin Cup argues, then its aim was

accomplished by the first paragraph alone. That paragraph

prohibited any funds from being used in fiscal year 1993 to

12 TIN CUP V. USACE

delineate wetlands in accordance with the 1989 Manual, and

the 1987 Manual was the only available alternative.

These two paragraphs reasonably can be interpreted as

complementary statements. The first paragraph is a

command about what the Corps could not do during fiscal

year 1993, and the second paragraph is a description of what

Congress expected it to do instead. Indeed, the first

paragraph uses the mandatory term “shall,” while the second

paragraph uses the word “will.” The Supreme Court has

distinguished descriptive “will” statements from mandatory

“shall” statements. See Norton v. Southern Utah Wilderness

Alliance, 542 U.S. 55, 69 (2004) (concluding that a statute’s

requirement that an agency “shall” act in accordance with a

land use plan was a mandatory statement, but that a statement

in the land use plan about what the agency “will” do was not

“a binding commitment”). The 1993 Budget Act’s statement

that the Corps “will continue to use” the 1987 Manual,

106 Stat. at 1324, should be viewed in these terms. The

provision recorded Congress’s understanding of the Corps’

intention to delineate wetlands using the 1987 Manual. It

does not bind the Corps to using the 1987 Manual. Had

Congress intended to bind the Corps, it would have used the

word “shall.” This interpretation comports with the “well-

established canon of statutory interpretation that the use of

different words or terms within a statute demonstrates that

Congress intended to convey a different meaning for those

words.” S.E.C. v. McCarthy, 322 F.3d 650, 656 (9th Cir.

2003) (collecting cases).

This distinction between “shall” and “will” statements is

consistent with other provisions of the 1993 Budget Act.

Congress seemed to use “will” statements to describe the

consequences of mandatory commands. In one provision,

TIN CUP V. USACE 13

Congress “directed” the Corps to continue an ongoing

feasibility study and then stated that the study “will consider

the agricultural benefits of using both traditional and

nontraditional methods . . .” 106 Stat. at 1316. In another

provision, Congress stated that funds “shall be available” for

infrastructure studies and then stated that those funds “will be

administered by” the Department of Energy. 106 Stat. at

1334. The Corps’ interpretation of the provision at

issue—that “shall” connotes a mandatory obligation and

“will” connotes a description of what Congress expected to

happen—is a reasonable reading of the statute. It cannot be

said that the language of the statute “admits of no other

reasonable interpretation” than the interpretation that Tin Cup

has proffered. Minis, 40 U.S. at 445.

Tin Cup urges us to conclude that the structure of the

paragraphs in the 1993 Budget Act implies that the second

paragraph contains a clear statement of futurity. Tin Cup

observes that the 1987 Manual provision appears as a

separate paragraph from the preceding provision on

appropriations for fiscal year 1993, and it argues that this

suggests that the two provisions are independent. Thus, Tin

Cup argues, the first paragraph applies to fiscal year 1993 and

the second paragraph enacts an unrelated permanent change

in the law.

More relevant for discerning futurity is the relationship

between the contents of the two paragraphs. See GAO,

Principles of Federal Appropriations Law at 2-90 (stating

that when a “provision bears no direct relationship to the

appropriation act in which it appears, this is an indication of

permanence . . . The closer the relationship, the less likely it

is the provision will be viewed as permanent”). The two

paragraphs here bear a close relationship: they both concern

14 TIN CUP V. USACE

the manual to be used in making wetlands delineation. This

weighs strongly in favor of viewing the second paragraph as

a descriptive clarification of the first, rather than as an

independent provision establishing permanent law. The fact

of a paragraph break does not on its own imply that the

second paragraph was meant to be independent of the first

paragraph.

Tin Cup observes that elsewhere in the 1993 Budget Act,

Congress did not use a paragraph break when restricting uses

of funds appropriated in fiscal year 1993. See, e.g., 106 Stat.

at 1323–24. It argues that this suggests that a paragraph

break was used intentionally to set apart the second paragraph

as an independent provision. However, the structure of these

provisions bolster’s the Corps’s interpretation of the 1987

Manual provision. In each of the examples that Tin Cup

cites, the second provision was clearly mandatory: it used the

word “shall” to set a limitation on how an appropriation in the

first provision was to be used. See 106 Stat. at 1323–24. In

the paragraphs at issue in this case, the fact that Congress did

not string together the two provisions and did not use the

words “Provided” or “Provided further” further suggests that

the second paragraph was not mandatory and was instead a

description of the consequences of the mandate in the first

paragraph. Tin Cup has not shown a clear statement from

Congress that the second paragraph in the 1993 Budget Act

enacted a mandatory, permanent change in substantive law.

III

Given that we require a clear statement of futurity in order

to give permanent effect to a provision of an appropriations

act, we need not delve into legislative history to explain the

1993 Budget Act’s provisions. See Bldg. & Constr. Trades

TIN CUP V. USACE 15

Dep’t, AFL-CIO, 961 F.2d at 274 (observing that “legislative

history can only help to explain a statute; it cannot

reconstruct it”). Given the strong presumption against

appropriations acts enacting permanent changes in

substantive law, the absence of a clear statement of futurity

in the 1993 Budget Act is dispositive. The 1993 Budget Act

prohibited the Corps from using the 1987 Manual during

fiscal year 1993, and Congress included a second paragraph

to explain what it expected the Corps to do instead.

AFFIRMED.

BEA, Circuit Judge, concurring in judgment:

I agree with the majority’s ultimate conclusion that the

district court did not err in granting summary judgment to the

Army Corps of Engineers (the “Corps”). However, because

I think that the 1993 Budget Act contained sufficient words

of futurity to bind the Corps after the 1993 fiscal year, I write

separately.

I

A

As discussed by the majority, the Corps makes

determinations regarding what is a “wetland” within the

meaning of the Clean Water Act (“CWA”) and its

implementing regulations. The first such manual was

published in 1987 (the “1987 Manual”). The 1987 Manual

identified three key elements that define the presence of

wetlands: (1) the presence of vegetation adapted to saturated

16 TIN CUP V. USACE

soil (“vegetation”); (2) the presence soil that is permanently

or seasonally saturated by water (“hydric soil”); and

(3) appropriate hydrologic conditions, such as the saturation

of soil during the growing season (“hydrology”). Importantly

for this case, an appendix to the 1987 Manual instructs that

the “growing season” can be identified as the days that the

soil at a depth of 19.7 inches reaches a temperature above

5 degrees Celsius.

In 1989, the Corps released a new version of the wetlands

manual (the “1989 Manual”). However, in appropriations

acts passed in both 1992 and 1993, Congress sought to

prevent the Corps from using the 1989 Manual to make

wetlands determinations.

In the 1992 Act, Pub. L. No. 102-104, 105 Stat. 510

(1991) (the “1992 Budget Act”), Congress prohibited the use

of funds appropriated by the bill to delineate wetlands under

the 1989 Manual or any subsequent manual “not adopted in

accordance with the requirements for notice and public

comment.” Title I, 105 Stat. at 518. The 1992 Budget Act

also required the Corps to use the 1987 Manual to delineate

any wetlands in any ongoing enforcement actions or permit

application reviews. Id. These provisions effectively

required the Corps to abandon the 1989 Manual and revert to

the 1987 Manual during the 1992–1993 fiscal year.

Because the 1992 Budget Act was an appropriation bill,

it was necessary to revisit the issue of the wetlands Manual

during the 1993 appropriations process. The 1993 Budget

Act again prohibited the Corps from using any funds to

implement the 1989 Manual or any subsequent manual

“adopted without notice and public comment.” Title I, 106

Stat. at 1324. However, the 1993 Budget Act included an

TIN CUP V. USACE 17

additional provision which stated that “the Corps of

Engineers will continue to use the Corps of Engineers 1987

Manual, as it has since August 17, 1991, until a final wetlands

delineation manual is adopted.” Title I, 106 Stat. at 1324.

The 1993 Budget Act also appropriated funds for the

National Research Council (“NRC”) to make

recommendations to EPA and Congress regarding future

wetlands regulation. H.R. Rep. No. 102-710, at 51. In 1995,

the NRC recommended a number of changes to the wetlands

delineation process. See Nat’l Research Council, Comm. on

Characterization of Wetlands, Wetlands: Characteristics &

Boundaries (1995) (National Research Council Report).

Among those changes, the NRC recommended that the Corps

should either abandon its focus on “growing seasons” or that

wetland determinations should become more regionally

focused.

In response, the EPA has issued a number of “regional

supplements” to the 1987 Manual. In 2007, after public

notice and comment, the Corps published its regional

supplement for Alaska (the “Alaska Supplement”), which

provides specific guidance regarding the identification of

wetlands in Alaska.

B

Tin Cup, LLC owns a 455-acre parcel of land near North

Pole, Alaska. Tin Cup seeks to build a pipe fabrication and

storage facility on the parcel. The relocation project will

entail the placement of a gravel pad, as well as the

construction of several buildings and a railroad spur. Thus,

the project will require the excavation and laying down of

18 TIN CUP V. USACE

gravel material, which is a regulated “pollutant” under the

Clean Water Act. See 33 U.S.C. § 1362(6).

The Corps examined the extent of wetlands on the site

and issued a jurisdictional determination, concluding that

wetlands were present on 351 acres of Tin Cup’s 455-acre

site. The Corps’ wetlands determination included about

200 acres of permafrost, which it found qualified as a wetland

using the Alaska Supplement. The Corps issued Tin Cup a

permit for the project, but the permit included special

conditions requiring Tin Cup to, among other things,

construct a “reclaimed pond and riparian fringe” of between

6 and 24 acres total in size and a 250-foot-wide buffer around

the riparian fringe totaling at least 23 acres.

Tin Cup objected to the Corps’ jurisdictional

determination, arguing that the permafrost was not a

“wetland.” Tin Cup argued that because the permafrost’s

ground temperature at a depth of 19.7 inches never rises

above 5 degrees Celsius, the permafrost areas have no

“growing season” within the meaning of the 1987 Manual

and thus were not wetlands. After a series of regulatory

proceedings and appeals, including two administrative

appeals under the APA, the Corps’ jurisdictional

determination and conditions remained unchanged.

Dissatisfied with that result, Tin Cup filed the instant

lawsuit in the District of Alaska, seeking review of the Corps’

permit pursuant to the judicial review provisions of the

Administrative Procedure Act, 5 U.S.C. §§ 701–706. The

parties filed cross-motions for summary judgment. The

district court granted The Corps’ motion for summary

judgment and denied Tin Cup’s motion for summary

judgment. Tin Cup appealed the district court’s summary

TIN CUP V. USACE 19

judgment order to this court. We review the district court’s

order granting summary judgment de novo. Ocean Advocates

v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005).

II

As the majority correctly states, the first key issue we are

called upon to decide is whether the 1993 Budget Act

requires the Corps to use the 1987 Manual until it adopts a

new manual via notice and comment. We have held that “[a]s

a general rule of thumb, appropriations acts are in force

during the fiscal year of the appropriation and do not work a

permanent change in the substantive law.” Seattle Audubon

Soc’y v. Evans, 952 F.2d 297, 304 (9th Cir. 1991). “To rebut

this presumption takes a clear statement of ‘futurity,’ such as

‘hereafter.’” Nat. Res. Def. Council v. U.S. Forest Serv.,

421 F.3d 797, 806 (9th Cir. 2005). Ultimately, “[t]he

question is one of legislative intent.” Evans, 952 F.2d at 304.

The relevant portion of the 1993 Budget Act contains two

provisions. In the first paragraph, Congress prohibited the

Corps from using any funds appropriated by the 1993 Budget

Act to implement the 1989 version of the Corps’ wetlands

manual or any subsequent manual “adopted without notice

and public comment.” Title I, 106 Stat. at 1324. Next, the

1993 Budget Act includes a provision that states that “the

Corps of Engineers will continue to use the Corps of

Engineers 1987 Manual, as it has since August 17, 1991, until

a final wetlands delineation manual is adopted.” Title I,

106 Stat. at 1324.

In my view, the plain language of the 1993 Budget Act

demonstrates Congress’s clear intent that the Corps continue

using the 1987 Manual beyond the 1993–1994 fiscal year.

20 TIN CUP V. USACE

The relevant provision contains two indications of futurity.

First, the Act provides that the Corps “will continue” to use

the 1987 Manual. The word “will” is a word of futurity. See

Merriam-Webster Dictionary 603 (Home and Office Ed.,

1995) (defining “will” to mean “used as an auxiliary verb to

express . . . simple futurity”).

Second, the Act tells the Corps how long it must continue

to use the 1987 Manual: “until” it adopts a new manual.

Congress has explicitly recognized the word “until” as a word

of futurity in the context of appropriations bills. See H.R.

Rep. No. 88-1040, at 55 (1963) (the “most common

technique” to make funds “available for longer than a one-

year period” is to add the words “‘to remain available until

expended’”). The combination of “will” and “until” in the

1993 Budget Act demonstrate Congress’s clear intent for the

Act to bind the Corps beyond the 1993–1994 fiscal year.

The majority’s primary response on this point is the note

that the 1993 Budget Act does not use the word “hereafter.”

The majority argues that, “hereafter” is the most common

word of futurity in appropriations bills, that Congress used

“hereafter” elsewhere in the 1993 Budget Act, and that the

absence of “hereafter” in this provision demonstrates that

Congress did not intend to express futurity.

This argument is unpersuasive. The majority cites the

Government Accountability Office’s (“GAO”) “Red Book”

on the interpretation of appropriations bills for the

proposition that “hereafter” is the most common word of

futurity. See Government Accountability Office, Principles

of Federal Appropriations Law (4th ed. 2016 rev.) at 2-86.

But the Red Book itself recognizes that “hereafter” is not the

only word of futurity and that, consistent with past

TIN CUP V. USACE 21

congressional use, “until” can also be used to express futurity

in certain contexts. See id. at 2-26. We have previously

recognized the expertise of the GAO in this area and have

relied on the Red Book in interpreting appropriations bills.

See, e.g. Indus. Customers of Nw. Utils. v. Bonneville Power

Admin., 767 F.3d 912, 923 (9th Cir. 2014). The majority

provides no basis to rely on that expertise selectively.

The majority is, of course, correct that Congress used the

word “hereafter” in other portions of the 1993 Budget Act

when expressing futurity. But the fact that Congress used one

word of futurity in some contexts and another word of

futurity in another context is hardly remarkable. This is

particularly true when both the GAO and Congress itself have

recognized that there are other ways, including the use of the

word “until,” to express futurity clearly.

Next, the majority contends the Corps is not bound by the

second paragraph of the 1993 Budget Act because the

paragraph is a description of what the Corps will do, not a

command. The majority bases this argument on the use of the

word “will” instead of the word “shall.” The majority argues

that by using the word “will,” Congress intended to describe

what the Corps had already stated it would do if it could not

use the 1989 Manual (namely, use the 1987 Manual) and did

not intend to command the Corps to take that course of

action.1

1

The majority cites Norton v. S. Utah Wilderness All., 542 U.S. 55,

69 (2004) for the proposition that “will” is not necessarily binding. But

Norton is distinguishable. In Norton, the Bureau of Land Management

(“BLM”) was required to create land management plans for certain parcels

of federal land. Id. at 58–61. One of the land management plans stated

that the BLM “will” conduct a monitoring program. Id. When the BLM

did not conduct a monitoring program, environmental plaintiffs sued,

22 TIN CUP V. USACE

But the word “will” can be a command and is often

indistinguishable from the word “shall.” See Black’s Law

Dictionary 1771 (Revised 4th Ed. 1968) (defining “will” as

“[a]n auxiliary verb commonly having the mandatory sense

of ‘shall’ or ‘must’”). The context of the provisions does not

provide a reason to deviate from this plain meaning. In fact,

Congress’s use of “furthermore” to start the second

paragraph, immediately following a paragraph that contained

a command, demonstrates that Congress understood the

second paragraph to contain a second, additional command.

Additionally, if the majority is correct, then the second

paragraph is likely superfluous, running afoul of the canon

that statutes should be construed so as to give effect to all of

their provisions. See Corley v. United States, 556 U.S. 303,

129 (2009); see also ANTONIN SCALIA & BRYAN A. GARNER,

READING LAW: THE INTERPRETATION OF LEGAL TEXTS 174

(2012). If all Congress meant to achieve through the 1993

Budget Act was to bar the Corps from using funds to enforce

the 1989 Manual for the coming fiscal year (which is what

arguing that the BLM was bound to fulfill its commitments under the land

management plan. Id. The district court dismissed the claims, but the

Tenth Circuit reversed. Id. The Supreme Court reversed the Tenth

Circuit, holding that the use of the word “will” in the land management

plans did not create a binding commitment on the part of the BLM. Id. at

67–72.

Norton is distinguishable from this case for at least two reasons.

First, it did not concern the interpretation of an appropriations bill, but

rather the interpretation of words in a BLM land management plan.

Second, Norton involved a unilateral commitment by the BLM. Norton

did not consider whether “will” was a “command,” because there was no

one to command. The question was whether “will” created a binding

commitment, not whether it was being used to command a specific course

of action by another party.

TIN CUP V. USACE 23

the majority and the Corps contend), it could have stopped

writing after the first paragraph. Congress had no need to

describe in a nonbinding fashion what the Corps would do as

a result of its command.

In short, “will” and “until” are words of futurity that

express Congress’s intent for the 1993 Budget Act to bind the

Corps beyond the 1993–1994 fiscal year. Thus, the much

stronger reading of the 1993 Budget Act is that Congress was

commanding the Corps to continue its use of the 1987

Manual until it adopted a new wetlands manual. As a result,

I would hold that the Corps was required to apply the 1987

Manual to Tin Cup’s case.

III

Nonetheless, I would still hold that the district court did

not err in granting the Corps’ summary judgment on Tin

Cup’s claims. Although the 1993 Budget Act continues to

bind the Corps, the 1993 Budget Act does not preclude the

Corps from applying the Alaska Supplement because

language from the 1987 Manual itself allows the Corps to

amend and supplement the 1987 Manual and the Alaska

Supplement is consistent with that language.

The 1987 Manual identifies three factors that should be

evaluated in making wetlands determinations: vegetation,

hydric soil, and hydrology (the “Three Factors”). The 1987

Manual requires that, for the hydrology element to be

satisfied, the regulator must “establish that a wetland area is

periodically inundated or has saturated soils during the

growing season.”

24 TIN CUP V. USACE

An appendix to the original 1987 Manual defined

“growing season” in terms of the days on which soil

temperatures were higher than 5 degrees Celsius at a depth of

19.7 inches. But the 1987 Manual acknowledged that

hydrology was “often the least exact” of the Three Factors

and allowed regulators to approximate the growing season

based on “frost free days” or establish hydrology through

direct observation of conditions on the ground, such as

inundation or soil saturation, sediment deposits, drainage

patterns, or certain characteristics of vegetation.

In light of these inexact standards, the Corps argues that

the language of the 1987 Manual clearly contemplates

regional supplements like the Alaska Supplement, which can

alter some of the finer points of wetlands identification based

on regional factors. Indeed, the 1987 Manual provides that

the methods for analyzing the Three Factors can be altered,

as “site-specific conditions may require modification of field

procedures.”2

The 1987 Manual explicitly acknowledges that “certain

wetland types, under the extremes of normal circumstances,

may not always meet all the wetland criteria defined in the

manual.” The 1987 Manual goes on to state that “such

wetland areas may warrant additional research to refine

methods for their delineation.”

2

Tin Cup argues that these statements relate to certain known

“problem areas” and that permafrost was not one such “problem area.”

However, Tin Cup’s argument is undercut by subsequent Corps guidance,

which specifically stated that the list of “problem areas” was non-

exclusive and the 1987 Manual’s statements regarding flexibility were

meant to be broader than the list of “problem areas.”

TIN CUP V. USACE 25

Relying on this language, the Corps has made alterations

to the method for identifying hydrology and the “growing

season” for nearly three decades, including before the 1993

Budget Act was passed. In 1992, before the 1993 Budget Act

was passed, the Corps issued guidance stating that, although

the soil temperature factor noted in the appendix of the 1987

Manual was the “primary” definition of growing season,

“local means of determining growing season may be more

appropriate and can be used.” See U.S. Army Corps of

Engineers, “Clarification and Interpretation of the 1987

Manual” (Mar. 6, 1992).

The Alaska Supplement—including its definition of the

“growing season,” which is at issue here—is nothing more

than formal guidance regarding the “local means” that were

permitted under the 1987 Manual and its subsequent guidance

documents. Given that the Corps was already allowed to use

such “local means” at the time Congress passed the 1993

Budget Act, the 1993 Budget Act cannot be read to prohibit

use of the Alaska Supplement.

Tin Cup does not meaningfully dispute that the Corps has

at least some ability to supplement or amend the 1987

Manual. Instead, Tin Cup’s only argument is that the Alaska

Supplement is not a “true” supplement because it disregards

the soil temperature factor in determining the growing season.

In Tin Cup’s view, because the Alaska Supplement does not

consider ground temperature in determining the growing

season, it contradicts the 1987 Manual and cannot be a

“supplement” to that Manual.

This argument is not persuasive for at least two reasons.

First, soil temperature was not even the exclusive method of

determining growing season and hydrology under the original

26 TIN CUP V. USACE

1987 Manual. As discussed above, the Manual allowed

regulators to “approximate” the growing season based on

frost free days or establish hydrology without reference to a

“growing season” through direct observation of conditions on

the ground, such as inundation or soil saturation, sediment

deposits, drainage patterns, or certain characteristics of

vegetation. As a result, declining to use soil temperature as

part of the hydrology analysis would have been permissible

under the original 1987 Manual, given certain circumstances.

Additionally, the 1987 Manual as it existed and was used

at the time of the 1993 Budget Act clearly permitted

regulators to disregard soil temperature in favor of “local

means” of determining a growing season. See U.S. Army

Corps of Engineers, “Clarification and Interpretation of the

1987 Manual” (Mar. 6, 1992). The Alaska Supplement

represents the Corps’ attempt to define just such “local

means” for making wetlands determinations in Alaska. Thus,

there is no basis to conclude that soil temperature must

always be considered when making a wetlands determination

and that any method that does not consider soil temperature

contradicts the 1987 Manual.3

3

Tin Cup argues that there must be some limits on the Corps’ ability

to amend the 1987 Manual or else the 1993 Budget Act would be rendered

meaningless. This may be true, but the 1987 Manual itself provides those

outer bounds. For instance, the Manual states that, although wetlands

determinations are flexible and subject to local considerations, “the basic

approach” of using the Three Factors of vegetation, hydric soils, and

hydrology “should not be altered.”

Thus, if the Corps attempted to adopt a regional supplement that

applied only two of the Three Factors, Tin Cup’s argument would have

more force. Similarly, if the Corps attempted to adopt a regional

supplement that replaced the Three Factors with other factors, that action

might exceed the Corps’ authority. But in this case, the Corps’ Alaska

TIN CUP V. USACE 27

Consequently, although Tin Cup is correct that the Corps

is required to use the 1987 Manual, I would hold that the

Alaska Supplement is a proper supplement that is authorized

by the 1987 Manual itself. As a result, I would conclude that

the district court did not err when it rejected Tin Cup’s

argument that the Corps should be barred from using the

Alaska Supplement.

Supplement retains the Three Factor evaluation. The Alaska Supplement

merely provides different, region-specific methods for identifying the

Three Factors in Alaska’s unique environment.