Petition for Writ of Certiorari — Laguna Gatuna, Inc. v. Browner

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Court, U.&.

FILED

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gR- 465 SEP 18 9

No. __OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

LAGUNA GATUNA, INC., A New Mexico Corporation,

Petitioner,

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, JANE N. SAGINAW,

Regional Administrator, Region VI of the

Environmental Protection Agency, and the

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

- «

Topp Stusss WeELcH*

*Counsel of Record

WILLIAM Perry PENDLEY

Paut M. Sesy

MOowunrtTAIN STATES LEGAL FOUNDATION

1660 Lincoln Street, Suite 2300

Denver, Colorado 80264

(303) 861-0244

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

ISSUES PRESENTED

1. Whether the Due Process Clause is violated when

an individual is placed in the “constitutionally intolerable

position” of having to choose between either obeying an

Environmental Protection Agency cease and desist order,

thereby forgoing any possibility of judicial review, or

violating that order and risking enormous and severe

penalties, effectively cutting off all access to the courts?

2. Whether the total silence in Clean Water Act

§ 1319(a) as to the matter of judicial review and the

absence of the “meaningful review” for jurisdictional

claims under the Clean Water Act authorize the holding

of the Tenth Circuit that judicial review is precluded

under that statute, especially since, as this Court noted in

Abbott Laboratories v. Gardner, “(t]he right of review is too

important to be excluded on such slender and indetermi-

nate evidence of legislative intent?”

3. Whether the holding of the Tenth Circuit, that a

lawsuit challenging an Environmental Protection Agency

CWA § 1319(a) cease and desist order constitutes “pre-

enforcement review” and that no judicial review of such

an order is permitted, is contrary to the holding of this

Court in Thunder Basin Coal v. Reich since Laguna Gatuna

has “no other means . . . to protect and enforce” its

rights?

4. Whether the holding of the Tenth Circuit, that

judicial review is not permitted of an Environmental Pro-

tection Agency cease and desist order that deprives

Laguna Gatuna of property and liberty interests, is con-

trary to numerous holdings of this Court that federal

ISSUES PRESENTED - Continued

courts have the jurisdiction to review the constitu-

tionality of such actions by federal agencies?

5. Whether the holding of the Tenth Circuit, that

while Laguna Gatuna’s “argument that it should not be

necessary to violate an EPA order and risk civil and

criminal penalties to obtain judicial review is well taken,”

such a result is not “constitutionally intolerable” since

granting Laguna Gatuna judicial review “would under-

mine the EPA’s regulatory authority,” is contrary to

numerous holdings of this Court as to the balance

between Constitutional questions and matters of adminis-

trative convenience?

iii

LIST OF PARTIES

Laguna Gatuna, Inc. (Laguna Gatuna) was Plaintiff in

the United States District Court for the District of New

Mexico and Appellant before the United States Court of

Appeals for the Tenth Circuit. Laguna Gatuna is a corpo-

ration organized under the laws of the State of New

Mexico. Laguna Gatuna has no parent or subsidiary cor-

porations.

The following were Defendants in the United States

District Court for the District of New Mexico and Appel-

lees before the United States Court of Appeals for the

Tenth Circuit: Carol M. Browner, in her official capacity

as Administrator of the Environmental Protection

Agency; Joe D. Winkle, in his official capacity as Acting

Regional Administrator of Region VI of the Environmen-

tal Protection Agency (Mr. Winkle has since been

replaced in his official capacity by Jane N. Saginaw); and

the Environmental Protection Agency.

TABLE OF CONTENTS

Page

SGUES PREGENTEDy «.. 6.cce iv ceest yp chseiessowenes i

Ce CO PRES s bv dec coccaccey¢ieusvegvestdae ts iii

CPs IG a 5k bie oe ee Tie 1

pA ye. Se ere pry ries 2

CONSTITUTIONAL PROVISION INVOLVED....... 2

SET PT eRe Cac doe cedc db eedaearedecs 2

STATEMENT OF THEE CAGE o oieicic cc dicaccvvns ccdens 3

TEPER EE GC WI rid awicctnviiag cance} snes 5

REASONS FOR GRANTING THE WRIT ........... 7

I. THE DECISION OF THE TENTH CIRCUIT CRE-

ATES A TRUE, DIRECT, AND IRRECONCILABLE

CONFLICT WITH DECISIONS OF THIS COURT

REGARDING THE DUE PROCESS CLAUSE OF

THE FIFTH AMENDMENT. ..........cccccceese 7

Il. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRRECON-

CILABLE CONFLICT WITH DECISIONS OF

THIS COURT REGARDING THE

REVIEWABILITY OF ADMINISTRATIVE

CSR a Silas ccoue sd sven sat aupneeia ede eeks 11

A. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRREC-

ONCILABLE CONFLICT WITH DECI-

SIONS OF THIS COURT SINCE LAGUNA

GATUNA IS DENIED THE RIGHT TO

“MEANINGFUL REVIEW” OF ITS CLAIMS

TABLE OF CONTENTS - Continued

Page

B. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRREC-

ONCILABLE CONFLICT WITH DECI-

SIONS OF THIS COURT SINCE THE

LANGUAGE, STRUCTURE, PURPOSE

AND LEGISLATIVE HISTORY OF THE

CLEAN WATER ACT EVIDENCE NO

INTENT TO PRECLUDE JUDICIAL

ROT bidekekagrewncenesesscekspreediaes 13

C. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRREC-

ONCILABLE CONFLICT WITH DECI-

SIONS OF THIS COURT REGARDING THE

FACT THAT CONSTITUTIONAL GUAR-

ANTEES ARE SUPERIOR TO PUBLIC POL-

Ba; 6 GE So kdacceiscbeevtner cokes 15

D. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRREC-

ONCILABLE CONFLICT WITH DECI-

SIONS OF THIS COURT REGARDING THE

INTERPRETATION OF A FEDERAL STAT-

eee ce doencsces vivasse balan ereweeueeeEes 16

E. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRREC-

ONCILABLE CONFLICT WITH DECI-

SIONS OF THIS COURT REGARDING THE

STRONG PRESUMPTION OF JUDICIAL

WU a i hed be se re bind tevecdtateresess 18

III. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRRECON-

CILABLE CONFLICT WITH THE DECISION

OF THIS COURT IN THUNDER BASIN COAL

COMPANY V. REICH REGARDING LAGUNA

GATUNA’S RIGHT TO JUDICIAL REVIEW.... 19

TABLE OF CONTENTS - Continued

Page

IV. THE DECISION OF THE TENTH CIRCUIT CRE-

ATES A TRUE, DIRECT, AND IRRECONCIL-

ABLE CONFLICT WITH DECISIONS OF THIS

COURT THAT STATUTORY PRECLUSION OF

JUDICIAL REVIEW OF AGENCY ACTION

CANNOT FORECLOSE CONSIDERATION OF

CONSTITUTIONAL OR LEGAL QUESTIONS.. 23

CURVE SMG 00 005 CR Csk coe cdee cake aceeeeeeteees 25

Vii

TABLE OF AUTHORITIES

Page

CASES

Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) passim

American School of Magnetic Healing v. McAnnulty,

he Ee eran ae ae ee 18

Battaglia v. General Motors, 169 F.2d 254 (2nd Cir.

1948), cert. denied, 355 U.S. 887 (1948)............. 23

Block v. Community Nutrition Institute, 467 U.S. 340

SUES ER Sty PW al cuuedncccdiceces ti dhe ce 13, 15, 17, 18

Board of Regents v. Roth, 408 U.S. 564 (1972)........ 8, 9

Buttrey v. United States, 690 F.2d 1170 (5th Cir.

BO hoe AN koe Saba Saks inhis inc4dde vied cakes bas 20

Califano v. Sanders, 430 U.S. 99 (1977) ............... 23

Dunlop v. Bachowski, 421 U.S. 560 (1975)............. 19

Fuentes v. Shevin, 407 U.S. 67 (1972)................. 10

Marbury v. Madison, 5 U.S. (1 Cranch.) 137 (1803) .... 23

Mathews v. Eldridge, 424 U.S. 319 (1976).............. 8

National Federation of Federal Employees v. Wein-

berger, 818 F.2d 935 (D.C. Cir. 1987)............... 24

National Labor Relations Board v. Food and Commer-

cial Workers, 484 U.S. 112 (1987) ............... 17, 18

Oestereich v. Selective Service System, 393 U.S. 233

PEE Pabd Pekales 660656 CUE w eth Nasewersbeee scene 23

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) .... 16

Peoples Gas, Light & Coke Co. v. U.S. Postal, 658 F.2d

ae Se ER Wass ob WawecePabees sas saduseees 19

viii

TABLE OF AUTHORITIES - Continued

Page

Rueth v. United States Environmental Protection

Agency, 13 F.3d 227 (7th Cir. 1993)...........0000- 19

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............... 20

St. Joseph Stock Yards Co. v. United States, 298 U.S.

8 | Pe rer errr rey Peres re rte 23

Thunder Basin Coal Company v. Reich, 510 U.S. __,

S27 L.G.Se BO CISION 0 os cn ccscscsescncnsaees passim

Turner v. U.S. Parole Comm'n, 810 F.2d 612 (7th Cir.

gg SP rs re eee ayers pr eer near 19

U.S. v. James Daniel Good Real Property, 114 S. Ct.

CRG inks 0 54 han ii Ss Sock sence en eee 7

United States v. Emerson, 846 F.2c 541 (9th Cir.

Sc 4 sis 655 2d KR ARE ee ee ee eee 24

Webster v. Doe, 486 U.S. 592 (1988)............... 17, 24

CONSTITUTIONAL PROVISIONS

Pith Aenea. is ish oes Goer 2; Sh '& 7 ae

STATUTES

Ritiog &. Ff ewreririT Peto 2

Mt CO no ee a 2

Oe San Se Rew OC. OU Sis 6 0655s cacasare keseceeevens 2

Se Wa Ba aa ree Saved Sei keeee eee eecees a

ee Sa Tt PEED 02645 cuoxereciawens 5, tay oe ae oe

Se Rk te Res ea acaherieucnddessedeunvaneas il

90 URE. © TRIO oes oo oko css cdianee 6

TABLE OF AUTHORITIES - Continued

Page

ee se MEE o's Vin ada xo $0460 ds eased de scese 6

ee re ee aes uy ay ale uesmon 6

ee ED an 36 La baeks sues Kee dkat cox? 6, 13, 14

ee a I fo ar haa 4s 6 pb we ae ake bececcekcuns 6

BR re ee en eee 15

OTHER AUTHORTIES

Albrecht and Issacs, Wetlands Jurisdiction and

Judicial Review, Natural Resources and Envi-

| BPS ee ee 20

Websters’ Third New International Dictionary of

the English Language, Unabridged (1981)......... 22

— e

In The

Supreme Court of the United States

October Term, 1995

LAGUNA GATUNA, INC., A New Mexico Corporation,

Petitioner,

CAROL M. BROWNER, Administrator of the

Environmental Protection Agency, JANE N. SAGINAW,

Regional Administrator, Region VI of the

Environmental Protection Agency, and the

ENVIRONMENTAL PROTECTION AGENCY,

Respondents.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Tenth Circuit

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

Review is sought of the as yet unpublished opinion

of the United States Court of Appeals for the Tenth Cir-

cuit, dated June 20, 1995, appearing at pages App. 1 to

App. 7 of the Appendix. The order of the District Court,

dated April 8, 1994, also unpublished, appears at pages

App. 8 to App. 9 of the Appendix.

JURISDICTION

Petitioner seeks review of the opinion and judgment

issued by the United States Court of Appeals for the

Tenth Circuit. The Supreme Court has jurisdiction to

review this opinion pursuant to 28 U.S.C. § 1254(1).

nae @

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the U.S. Constitution is at

issue in this Petition for Writ of Certiorari. The Fifth

Amendment provides in part:

No person shall . . . be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use, without just compensation.

(App. 24.)

STATUTES INVOLVED

The statutes involved in this appeal are the Clean

Water Act (CWA), 33 U.S.C. § 1311 et seq., and the Admin-

istrative Procedure Act (APA), 5 U.S.C. § 702 et seq. The

specific provision of the CWA at issue in this case is

found at 33 U.S.C. § 1319, and appears at pages App. 25

to App. 43 of the Appendix. The specific provision of the

APA is 5 U.S.C. § 704, and appears at page App. 44 of the

Appendix.

STATEMENT OF THE CASE

This case presents a challenge to an interpretation of

the CWA that Laguna Gatuna may not challenge a find-

ing by the Environmental Protection Agency (EPA) that

property belonging to Laguna Gatuna is “waters of the

United States,” unless and until Laguna Gatuna violates

EPA's “cease and desist order” thereby subjecting Laguna

Gatuna to $25,000 a day fines, a $125,000 fine for “know-

ing” violations and jail time.

On June 24, 1994, Laguna Gatuna, Inc. (Laguna

Gatuna) filed an action in the United States District Court

for the District of New Mexico alleging that: (1) the EPA

did not have jurisdiction over lands belonging to Laguna

Gatuna regarding which the EPA had issued a “cease and

desist order” since that property contains no “waters of

the United States;” (2) Laguna Gatuna’s procedural due

process rights, as guaranteed by the Fifth Amendment,

had been violated by EPA’s “cease and desist order” since

Laguna Gatuna was deprived of its liberty interests with-

out due process; (3) Laguna Gatuna’s procedural due

process rights, as guaranteed by the Fifth Amendment,

had been violated by EPA’s “cease and desist order” since

Laguna Gatuna was deprived of its property interests

without due process; and (4) Laguna Gatuna’s substan-

tive due process rights, as guaranteed by the Fifth

Amendment, had been violated by EPA’s “cease and des-

ist order.”

On September 18, 1994, the United States filed a

Motion to Dismiss the action, arguing that the District

Court lacked subject matter jurisdiction. The United

States asserted that: (1) there can be no challenges to

“pre-enforcement decisions” made by the EPA; (2) the

EPA had not taken “final” action that would provide

jurisdiction under the APA; (3) the United States had not

waived its sovereign immunity to suits challenging “com-

pliance orders” issued under the CWA; (4) Laguna

Gatuna’s claim that the EPA failed to observe the

rulemaking procedures of the APA was without merit;

and (5) Laguna Gatuna’s Fifth Amendment rights to due

process had not been violated by the EPA.!

On April 8, 1994, after a hearing on the motion to

dismiss, the District Court issued an Order dismissing

Laguna Gatuna’s complaint.

On June 7, 1994, Laguna Gatuna filed a Notice of

Appeal with the United States Court of Appeals for the

Tenth Circuit. On May 18, 1995, oral arguments were held

before the Court of Appeals. On June 20, 1995, the Court

of Appeals issued an opinion holding:

Laguna’s policy argument that it should not be

necessary to violate an EPA order and risk civil

and criminal penalties to obtain judicial review

is well taken. Nevertheless, following the rea-

soning of our sister circuits, we reject Laguna’s

conclusion such a situation is “constitutionally

intolerable.” Judicial review of every unen-

forced compliance order would undermine the

EPA’s regulatory authority.

(App. 7.) This Petition for Writ of Certiorari follows.

1 The United States declared that the EPA “need not engage

in a prior adjudicatory process to issue such orders [as that

issued against Laguna Gatuna].” (Appellee’s Brief to the Tenth

Circuit at 7.) Thus, there was no “prior adjudicatory process”

before the cease and desist order was issued and there has been

no “adjudicatory process” or judicial review since the order was

issued.

STATEMENT OF FACTS

Laguna Gatuna is a New Mexico corporation, owned

and operated by Larry Squires, a New Mexico rancher

who lives in Hobbs, New Mexico. Laguna Gatuna’s sole

business is the disposal of waters produced in association

with oil and gas operations in New Mexico. Laguna

Gatuna disposed of those waters in a “sinkhole” —- known

as Laguna Gatuna - that consists of approximately 400

acres, a major portion of which is owned or controlled by

Laguna Gatuna and is located near Hobbs, New Mexico.?

Despite its name, Laguna Gatuna is a “sinkhole,” not

a “playa lake.”> Furthermore, the sinkhole is hydro-

logically isolated because no streams empty into it; no

streams drain out of it; and there are no surface or

groundwater connections between it and any other water

body. Thus, the sinkhole cannot possibly be defined as

“waters of the United States.” (App. 11.)

In 1987, Laguna Gatuna requested a ruling from the

EPA as to whether the sinkhole utilized by Laguna

Gatuna constituted “waters of the United States” as

defined by the CWA. The EPA responded, in writing, that

2 Of the 400 acres, a portion is owned by the U.S. Govern-

ment and managed by the U.S. Bureau of Land Management

(BLM). The remainder of Laguna Gatuna is privately owned or

under contract to be sold to the Laguna Gatuna. (App. 12.)

Laguna Gatuna had a permit from the BLM for its disposal

operation. The BLM permit was revoked when EPA issued its

cease and desist order.

3 “Laguna” in Spanish means “small lake.” A “sinkhole” is

formed by the erosion of an underlying salt structure and its

subsequent collapse. Playas, on the other hand, are formed by

wind erosion or by the wallowing of buffalo.

the sinkhole did not constitute “waters of the United

States.” (App. 13.) With this understanding, Laguna

Gatuna carried on its lawful business.

Then in 1991, the EPA changed its position and

declared the sinkhole to be “waters of the United States.”

Subsequently, in May of 1992, the EPA served Laguna

Gatuna with a “cease and desist” order pursuant to 33

U.S.C. § 1319(a) prohibiting any and all discharges into

the sinkhole on pain of the penalties under the CWA.4

The EPA’s order, which is the final administrative deci-

sion of the agency, not subject to change, is based upon

the EPA’s factual and legal determination that the sink-

hole constitutes “waters of the United States” and is

subject to the EPA’s CWA jurisdiction. 33 U.S.C. § 1362(7).

Laguna Gatuna complied immediately with the order

issued by the EPA and ceased discharges into the sink-

hole. As a result of its compliance with the EPA order,

Laguna Gatuna has been driven out of business. (App.

15-16.)

4 A violation of the EPA’s cease and desist order constitutes

a violation of the CWA which carries penalties of $25,000 a day

and three years in prison, as well as administrative penalties of

up to $125,000, per violation. 33 U.S.C. § 1319(c),(d) & (g). (App.

28-43) “Knowing” violations of the Act are separately punish-

able under the CWA and carry penalties of up to $50,000 per

day, plus three years in prison. 33 U.S.C. § 1319(c)(2). (App.

29-30.)

REASONS FOR GRANTING THE WRIT

I. THE DECISION OF THE TENTH CIRCUIT CRE-

ATES A TRUE, DIRECT, AND IRRECONCILABLE

CONFLICT WITH DECISIONS OF THIS COURT

REGARDING THE DUE PROCESS CLAUSE OF

THE FIFTH AMENDMENT.

The holding of the Tenth Circuit Court of Appeals

that Laguna Gatuna may not challenge the determination

of the EPA that Laguna Gatuna’s property is “waters of

the United States,” unless and until Laguna Gatuna vio-

lates the EPA’s cease and desist order, denies Laguna

Gatuna its due process rights as guaranteed by the Fifth

Amendment of the Constitution.5 Moreover, that decision

places the Tenth Circuit in direct and irreconcilable con-

flict with several holdings of this Court.

For example:

The Due Process Clause of the Fifth Amendment

guarantees that “[n]lo person shall .. . be

deprived of life, liberty, or property, without

due process of law.” Our precedents establish

the general rule that individuals must receive

notice and an opportunity to be heard before the

Government deprives them of property.

U.S. v. James Daniel Good Real Property, 114 S. Ct. 492, 498

(1993).

This Court consistently has held that some form

of hearing is required before an individual is

5 The Tenth Circuit Court of Appeals held: “[W]Je conclude

that the CWA provides no basis for such proceeding, despite

strong due process arguments advanced by the appellant.” (App. 2.)

(Emphasis added.)

finally deprived of a property interest. (Cita-

tions omitted) The “right to be heard before

being condemned to suffer grievous loss of any

kind, even though it may not involve the stigma

and hardships of a criminal conviction, is a prin-

ciple basic to our society.”

Mathews v. Eldridge, 424 U.S. 319, 333 (1976).

This Court has held that a procedural due process

claim has two components. First, a party must show that

a constitutionally-protected property or liberty interest

has been taken. Second, the party must show that the

procedural safeguards surrounding the deprivation were

inadequate. See, Board of Regents v. Roth, 408 U.S. 564,

568-69 (1972).

Laguna Gatuna, as owner of the property upon

which the sinkhole is located, has a “protected property

interest” in the property that the EPA claims to be

“waters of the United States.” Furthermore, Laguna

Gatuna has “protected [liberty] interest[s]” in its ability

“to contract, to engage in any of the common occupations

of life... . and generally to enjoy those privileges long

recognized . . . as essential to the orderly pursuit of

happiness by free men.” Roth, 408 U.S. at 572.© Therefore,

the first component of the test set forth by this Court has

been met. Laguna Gatuna has property and liberty inter-

ests in both its land and its business that have been

destroyed by the EPA’s determination that the sinkhole

constitutes “waters of the United States.”

protection for deprivations of liberty ....” Id.

As to the second component of procedural due pro-

cess, the adequacy of the procedural safe guards, this

Court has held: “When protected [property and liberty]

interests are implicated, the right to some kind of prior

hearing is paramount.” Roth, 408 U.S. at 569-70.

(Emphasis added.) Nevertheless, Laguna Gatuna had no

hearing: neither a hearing prior to the issuance of the

order by the EPA that the sinkhole constitutes “waters of

the United States” and that all discharges must cease, nor

judicial review subsequent to the EPA’s order. Moreover,

under the holding of the Tenth Circuit, Laguna Gatuna

will never receive any judicial review.

In its holding, the Tenth Circuit, while noting that

Laguna Gatuna’s “argument” was “well taken,” ignored

what this Court has recognized as “the dilemma of either

obeying the law and thereby forgoing any possibility of

judicial review, or risking ‘enormous’ and ‘severe’ penal-

ties, [that] effectively cut off all access to the courts.”

Thunder Basin Coal Company v. Reich, 510 U.S. __, 127

L.Ed.2d 29, 46 (1994). (Scalia, J. concurring).

As this Court has held, the Constitution compels the

right to be heard:

The constitutional right to be heard is a basic

aspect of the duty of government to follow a fair

process of decisionmaking when it acts to

deprive a person of his [property]. . . . For when

a person has an opportunity to speak up in his

own defense, and when the State must listen to

what he has to say, substantively unfair and

simply mistaken deprivations of property inter-

ests can be prevented. .. . “[And nJo better

instrument has been devised for arriving at

truth than to give a person in jeopardy of

serious loss notice of the case against him and

opportunity to meet it.”

Fuentes v. Shevin, 407 U.S. 67, 80-81 (1972).

Unlike the facts in Thunder Basin Coal where this

Court held that it “need not consider [the due process]

claim, because neither compliance with, nor continued

violation of, the statute will subject petitioner to a serious

prehearing deprivation,” in this case Laguna Gatuna has

been subjected to such deprivation. Thunder Basin Coal,

127 L.Ed.2d at 43. In fact, Laguna Gatuna has been driven

out of business by the EPA’s order. Clearly, unlike the

facts in Thunder Basin Coal this is “evidence that [Laguna

Gatuna] will be subject to serious harm if it complies with

[the EPA’s order].” Id. Thus, “the practical effect [of the

hundreds of thousands of dollars of fines and jail time for

violation of the EPA’s order] for non-compliance [is] to

foreclose all access to the courts.” Id. at 44. Furthermore,

“this [is] a situation in which compliance is sufficiently

potent that a constitutionally intolerable choice [is] pre-

sented.” Id. The holding of the Tenth Circuit is clearly in

error since it is contrary to the holding of this Court in

Thunder Basin Coal.

The holding of the Tenth Circuit deprives Laguna

Gatuna of the constitutional guarantees this Court has

held are required before deprivation of a property or

liberty interest can occur. Thus, the Tenth Circuit’s opin-

ion represents a true, direct and irreconcilable conflict

with the numerous holdings of this Court.

Il. THE DECISION OF THE TENTH CIRCUIT CRE-

ATES A TRUE, DIRECT, AND IRRECONCILABLE

CONFLICT WITH DECISIONS OF THIS COURT

REGARDING THE REVIEWABILITY OF ADMIN-

ISTRATIVE ORDERS.

The Tenth Circuit Court of Appeals held that orders

issued in accordance with 33 U.S.C. § 1319(a) of the CWA

are not reviewable, notwithstanding the fact that the

CWA does not preclude judicial review of the cease and

desist orders issued by the EPA under 33 U.S.C.

§ 1319(a)(3). The Tenth Circuit’s holding is in direct con-

flict with this Court’s rulings that judicial review of

agency action is available unless Congress specifically

forbids review. Abbott Laboratories v. Gardner, 387 U.S. 136,

141 (1967). In the absence of evidence that Congress

intended to prohibit pre-enforcement review of § 1319(a)

orders under the CWA, federal courts have subject matter

jurisdiction to review the agency action.

This Court has recently set forth the test to determine

whether judicial review is precluded by a particular stat-

ute:

Whether a statute is intended to preclude initial

judicial review is determined from the statute's

language, structure, and purpose, its legislative

history, and whether the claims can be afforded

meaningful review.

Thunder Basin Coal, 127 L.Ed.2d at 38. (Citations omitted.)

In the case at bar, there has been no “meaningful review”

of Laguna Gatuna’s claims that the EPA lacks jurisdiction

over the sinkhole in New Mexico. Furthermore, a review

of the CWA concludes that Congress did not intend to

preclude judicial review.

A. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRRECON-

CILABLE CONFLICT WITH DECISIONS OF

THIS COURT SINCE LAGUNA GATUNA IS

DENIED THE RIGHT TO “MEANINGFUL

REVIEW” OF ITS CLAIMS.

In Thunder Basin Coal this Court held that “whether

the claims can be afforded meaningful review” is an

essential element of the test to determine if a statute

precludes judicial review. Thunder Basin Coal, 127 L.Ed.2d

at 38.7 Thus, even if a court finds that the “language,

structure, and purpose” and/or the “legislative history”

of a particular statute precludes judicial review, the court

must still determine “whether the claims can be afforded

meaningful review.” Id. Otherwise, constitutionally

required due process has not been afforded.

Despite the clarity of the holding of this Court on the

subject, the Tenth Circuit ignored the fact that there was

no “meaningful review.” Under the holding of the Tenth

Circuit, judicial review is precluded forever since Laguna

Gatuna has no intention of violating the EPA cease and

desist order and since the EPA will not bring an “enforce-

ment action” against Laguna Gatuna until Laguna Gatuna

violates the cease and desist order. Thus, Laguna Gatuna

is forced to submit to the intolerable position of having to

“obey[] the [administrative order] and thereby forgo[]

7 Since the test this Court has articulated to determine

whether a statutory scheme precludes review consists of several

elements divided by the conjunction “and,” each of those ele-

ments must be met before judicial review can be precluded by

the statute.

any possibility of judicial review, or risk[] ‘enormous’ and

‘severe’ penalties, effectively cut[ting] off all access to the

courts.” Thunder Basin Coal, 127 L.Ed.2d at 46. This is a

true Hobson’s choice.

The holding of the Tenth Circuit thus violated this

Court’s rulings that judicial review is not precluded by an

act of Congress if the statute denies “meaningful review.”

Regardless of the provisions of the CWA or its legislative

history, judicial review is compelled by this Court’s hold-

ing in Thunder Basin Coal.

B. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRRECON-

CILABLE CONFLICT WITH DECISIONS OF

THIS COURT SINCE THE LANGUAGE,

STRUCTURE, PURPOSE AND LEGISLATIVE

HISTORY OF THE CLEAN WATER ACT EVI-

DENCE NO INTENT TO PRECLUDE JUDI-

CIAL REVIEW.

The presumption of judicial review may be overcome

“by specific language or specific legislative history that is

a reliable indicator of congressional intent.” Block v. Com-

munity Nutrition Institute, 467 U.S. 340, 349 (1984). In this

case both the CWA and its accompanying legislative his-

tory are totally silent on the issue of judicial review of

§ 1319(a) orders. Thus, the statute and its history lack the

clear and convincing evidence necessary to demonstrate

Congressional intent to deny judicial review.

Moreover, simply because Congress expressly pro-

vided for review of 33 U.S.C. § 1319(g) orders, (which are

altogether different from 33 U.S.C. § 1319(a) orders), in

the 1987 CWA amendments, does not indicate Congres-

sional intent to preclude review of 33 U.S.C. § 1319(a)

orders.® The presumption of review is not rebutted when

a statute expressly provides the right of review for certain

agency actions and decisions, but makes no mention of

review of other decisions by the agency:

The mere fact that some acts are made review-

able should not suffice to support an implication

of exclusion as to others. The right to review is too

important to be excluded on such slender and inde-

terminate evidence of legislative intent.

Abbott Laboratories, 387 U.S. at 141. (Emphasis added.)

Furthermore, given that Congress specifically pre-

cluded judicial review of “emergency orders” under the

CWA, it is clear that Congress was capable of denying,

and did deny, judicial review when it determined such

denial was appropriate and within a statute’s regulatory

scheme.

Despite this Court’s clear holding as to the manner in

which judicial review may be denied, the Tenth Circuit

Court of Appeals held that judicial review was denied for

§ 1319(a) orders. As a result, the holding of the Tenth

Circuit is in true, direct and irreconcilable conflict with

8 Petitioner notes that Congress, in adding the 1987

Amendments, included the following provision:

Nothing in this subsection shall change the pro-

cedures existing on the day before February 4, 1987,

under other subsections of this section for issuance

and enforcement of orders by the Administrator.

33 U.S.C. § 1319(g). Therefore, Congress specifically retained

the right of judicial review that existed prior to the passage of

the 1987 amendments.

this Court’s holdings in Thunder Basin Coal, 127 L.Ed.2d at

38; Block, 467 U.S. 340; and Abbott Laboratories, 387 U.S.

136.

C. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRRECON-

CILABLE CONFLICT WITH DECISIONS OF

THIS COURT REGARDING THE FACT THAT

CONSTITUTIONAL GUARANTEES ARE

SUPERIOR TO PUBLIC POLICY CONCERNS.

The Tenth Circuit affirmed the decision of the District

Court because “[j]udicial review of every unenforced

compliance order would undermine the EPA’s regulatory

authority.” (App. 7.) In the case at bar, Laguna Gatuna’s

challenge to the EPA’s determination that Laguna

Gatuna’s property is “waters of the United States” does

not affect “the EPA’s regulatory authority.” In fact,

Laguna Gatuna has complied with the cease and desist

order issued by the EPA. Moreover, in cases such as this,

in which the activity has ceased and the only issue is the

validity of the agency action, “the EPA’s regulatory

authority” will not be undermined. When an alleged

violator continues with its activity despite an EPA com-

pliance order, the EPA may seek a temporary restraining

order or preliminary injunction while a court challenge to

that compliance order is pending. In the case of an emer-

gency, the EPA may use its emergency powers under the

CWA. 33 U.S.C. § 1364(a).

Laguna Gatuna challenges only the EPA’s determina-

tion that the sinkhole is “waters of the United States.”

Laguna Gatuna does not seek to keep the EPA from

enforcing the CWA, but it merely seeks review by a

federal court of whether EPA’s determination is in accor-

dance with federal law. It is an action brought to preserve

Laguna Gatuna’s due process rights.

Even if the Tenth Circuit was correct that Laguna

Gatuna’s action would interfere with the EPA’s regulatory

authority that consideration is irrelevant in the face of a

constitutional guarantee. The Tenth Circuit may not so

easily brush aside due process guarantees out of concern

for “regulatory authority.” As this Court has held:

We are in danger of forgetting that a strong

public desire to improve the public condition is

not enough to warrant achieving the desire by a

shorter cut than the constitutional way... .

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416 (1922).

Clearly, the holding of the Tenth Circuit is in true,

direct and irreconcilable conflict with the decisions of this

Court.

D. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRRECON-

CILABLE CONFLICT WITH DECISIONS OF

THIS COURT REGARDING THE INTER-

PRETATION OF A FEDERAL STATUTE.

When courts have found legislative intent to pre-

clude judicial review of agency actions, those courts have

found evidence of such intent in the act’s legislative

history or in the act itself. For example, in Lloyd A. Fry

Roofing Co. v. U.S. Environmental Protection Agency, 554

F.2d 885 (8th Cir. 1977), even though the court found the

Clean Air Act silent on preclusion, there was evidence in

the legislative history supporting preclusion. That is, lan-

guage specifically preserving the right to judicial review

of the challenged agency action had been deleted from

the Clean Air Act in conference committee. Fry, 554 F.2d

at 890. In this case the Tenth Circuit looked beyond the

CWA to find authority for denying judicial review.’

Because the CWA is silent both on its face and in its

legislative history as to the question of judicial review,

the right of citizens to judicial review must be presumed.

This court has held that the presumption of judicial

review may be overcome only “by specific language or

specific legislative history that is a reliable indicator of

congressional intent.” Block, 467 U.S. at 349 (1984). Fur-

thermore:

The mere fact that some acts are made review-

able should not suffice to support an implication

of exclusion as to others. The right to review is too

important to be excluded on such slender and inde-

terminate evidence of legislative intent.

Abbott Laboratories, 387 U.S. at 141. (Emphasis added.) See

also, Thunder Basin Coal, 127 L.Ed.2d at 38. Nowhere does

this Court sanction a review of a separate and totally

unrelated statute to discern Congressional intent. Only

the statute at issue can provide the clear Congressional

intent. Webster v. Doe, 486 U.S. 592, 603 (1988); See also

National Labor Relations Board v. Food and Commercial

Workers, 484 U.S. 112, 131 (1987). By finding authority

from other federal statutes the decision of the Tenth

Circuit is in true, direct, and irreconcilable conflict with

9 The Tenth Circuit cited “analogous authority concerning

... CERCLA and the Clean Air Act.” (App. 4.)

decisions of this Court that the statute at issue is the only

“reliable indicator of congressional intent.” Block, 467 U.S.

at 349 (1984).

E. THE DECISION OF THE TENTH CIRCUIT

CREATES A TRUE, DIRECT, AND IRRECON-

CILABLE CONFLICT WITH DECISIONS OF

THIS COURT THAT THERE IS A STRONG

PRESUMPTION OF JUDICIAL REVIEW.

This Court has held consistently that actions of fed-

eral administrative agencies are presumed to be review-

able in federal courts. Block v. Community Nutrition

Institute, 467 U.S. 340 (1984).1° This presumption of

reviewability was articulated clearly in Abbott Laboratories

where this Court held “judicial review of a final agency

action by an aggrieved person will not be cut off unless

there is persuasive reason to believe that such was the

purpose of Congress.” Abbott Laboratories, 387 U.S. at 140.

Thus, courts may restrict access to judicial review only

upon a showing of “clear and convincing evidence” of

legislative intent to restrict review. Abbott Laboratories,

387 U.S. at 141. “The statutory preclusion of judicial

review must be demonstrated clearly and convincingly.”

National Labor Relations Board v. Food and Commercial

10 Further this Court has held that this presumption of

reviewability of agency action predates enactment of the APA.

See American School of Magnetic Healing v. McAnnulty, 187 U.S. 94

(1902). The APA simply codified this longstanding presump-

tion.

Workers, 484 U.S. 112, 131 (1987).11 Furthermore, such

intent must be demonstrated persuasively. Abbott Labora-

tories, 387 U.S. at 140.

Notwithstanding the holding of this Court in Abbott

Laboratories, the Tenth Circuit relied not upon “clear and

convincing evidence” in the CWA to deny judicial review,

but relied instead on “analogous authorities.” (App. 4.)

This the Tenth Circuit cannot do. Therefore, the decision

of the Tenth Circuit is in true, direct, and irreconcilable

conflict with the decisions of this Court that presume

judicial review.

Ill. THE DECISION OF THE TENTH CIRCUIT CRE-

ATES A TRUE, DIRECT, AND IRRECONCILABLE

CONFLICT WITH THE DECISION OF THIS

COURT IN THUNDER BASIN COAL COMPANY V.

REICH REGARDING LAGUNA GATUNA’S

RIGHT TO JUDICIAL REVIEW.

The decision of the Tenth Circuit is in direct conflict

with the decision of this Court in Thunder Basin Coal, 127

L.Ed.2d 29 (1994). In Thunder Basin Coal the challenge was

not to the jurisdiction of the Secretary of Labor under the

Mining Act because there was no question that jurisdic-

tion existed. However, in the case at bar, jurisdiction of

the EPA is the seminal issue. This issue was addressed by

the Seventh Circuit in Rueth v. United States Environmental

Protection Agency, 13 F.3d 227 (7th Cir. 1993):

11 Accord Dunlop v. Bachowski, 421 U.S. 560, 567 (1975);

Turner v. U.S. Parole Comm'n, 810 F.2d 612, 613 (7th Cir. 1987);

Peoples Gas, Light & Coke Co. v. U.S. Postal, 658 F.2d 1182 (7th Cir.

1981).

On the other hand, it is not inconceivable that

the EPA or the Corps of Engineers might com-

pletely overextend their authority. In such a

case, we suggest to those agencies that we will

not hesitate to intervene in agency activity ....

Id. at 231. (Emphasis added.) Laguna Gatuna asserts that

the EPA has “completely overextended [its] authority”

and that judicial review must be had to determine the

validity of Laguna Gatuna’s claims.!2 For as the Fifth

Circuit has held:

A procedure that seems perfectly reasonable

under one set of circumstances can, with only a

slight modification of the facts, suddenly

smack . . . of administrative tyranny.

Buttrey v. United States, 690 F.2d 1170, 1178 (5th Cir. 1982).

The “set of circumstances” in this case illustrates how

easily the “procedure” can “suddenly smack of adminis-

trative tyranny.”!> As this Court has noted, Laguna

Gatuna has “no other means within [its] control... . to

12 “[I]t is well established that, in passing on a motion to

dismiss, whether on the ground of lack of jurisdiction over the

subject matter or for failure to state a cause of action, the allega-

tions of the complaint should be construed favorably -to the

pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

13 “Unchecked authority breeds arrogance and overreach-

ing in those who possess it and disrespect and suspicion in

those who are subject to it.” Albrecht and Issacs, Wetlands

Jurisdiction and Judicial Review, Natural Resources and Envi-

ronment, Summer 1992, at page 67.

protect and enforce” its rights.'4 Thunder Basin Coal, 127

L.Ed.2d at 40.

In Thunder Basin Coal this Court held that “[c]hal-

lenges [under the Mine Safety Act] to enforcement are

reviewed by . . . [a] Commission which is independent of

the Department of Labor.” Thunder Basin Coal, 127

L.Ed.2d at 36. Yet, in this case, totally unlike the situation

in Thunder Basin Coal, there is no independent commis-

sion to provide meaningful review. Id. at 44. Instead, the

EPA acts as prosecutor, jury and judge, with full authority

to bring charges, review the charges and the evidence,

and assess penalties, without any opportunity for citizens

to obtain review of the underlying facts that may or may

not justify the original exercise of jurisdiction.

Finally, Thunder Basin Coal is a “pre-enforcement case

because petitioner sued before any order was issued.”

Thunder Basin Coal, 127 L.Ed.2d at 43. Notwithstanding

the holding of the Tenth Circuit that this case concerns

“pre-enforcement review,” this case does not involve pre-

enforcement review.!°

The EPA is already enforcing its view of the require-

ments of the CWA and has done so through its cease and

desist order. In fact, 33 U.S.C. § 1319, the section of the

CWA under which the cease and desist order was issued,

14 “If not allowed to pursue [its] claims in the district court,

{Laguna Gatuna] would not as a practicable matter be able to

obtain meaningful judicial review.” Thunder Basin Coal, 127

L.Ed.2d at 41.

15 “[Pre-enforcement review is] a suit brought by one

before any attempted enforcement of the statute or regulations

against him.” Abbott Laboratories v. Gardner, 387 U.S. at 139 n.1.

is captioned “Enforcement.” (App. 25.) The EPA’s action

against Laguna Gatuna, pursuant to 33 U.S.C. § 1319(a),

constitutes “enforcement” as that term is commonly

understood.!6 By administrative order, the EPA has

required Laguna Gatuna to cease and desist discharges

into the sinkhole. With the threat of administrative penal-

ties of up to $125,000.00, up to three years in jail and/or

civil liability accruing at the rate of $25,000.00 per day,

the EPA has compelled compliance with its view of the

requirements of the CWA.!7 Thus, the EPA is engaged, by

its order, in “the compelling of the fulfillment” of its view

of the CWA. If this is not enforcement, as all people know

it to be, then words have lost their meaning. Clearly, the

EPA’s actions taken pursuant to 33 U.S.C. § 1319(a), the

“Enforcement” section, with regard to Laguna Gatuna,

constitute “enforcement.”

For all of these reasons, Thunder Basin Coal strongly

supports Laguna Gatuna’s position that the District Court

has subject matter jurisdiction to hear and decide the

claims raised. Thus, the decision of the Tenth Circuit

creates a true, direct, and irreconcilable conflict with the

16 Laymen define “enforce” as “to put in force: cause to

take effect: give effect to esp. with vigor (-laws).” “Enforce-

ment” is defined as: “the compelling of the fulfillment (as of a

law or order).” Websters’ Third New International Dictionary of

the English Language, Unabridged (1981). The EPA’s actions here

certainly fit that common-sense definition.

17 “The alternative to compliance . . . may be even more

costly. .. . To require [Laguna Gatuna] to challenge [the EPA’s

decision] only as a defense to an action brought by the Govern-

ment might harm them severely and unnecessarily.” Abbott Lab-

oratories, 387 U.S. at 153. See also Thunder Basin Coal, 127 L.Ed.2d

at 46 (Scalia, J. concurring).

decision of this Court in Thunder Basin Coal both as to the

meaning of the “pre-enforcement” and as to the require-

ments of the due process clause.

IV. THE DECISION OF THE TENTH CIRCUIT CRE-

ATES A TRUE, DIRECT, AND IRRECONCILABLE

CONFLICT WITH DECISIONS OF THIS COURT

THAT STATUTORY PRECLUSION OF JUDICIAL

REVIEW OF AGENCY ACTION CANNOT FORE-

CLOSE CONSIDERATION OF CONSTITU-

TIONAL OR LEGAL QUESTIONS.

It is well-settled that federal courts have jurisdiction

to review the constitutionality of governmental actions.

Marbury v. Madison, 5 U.S. (1 Cranch.) 137, 177 (1803).

While Article IIi of the Constitution vests Congress with

the power to determine the jurisdictional authority of

federal district courts, that power is limited by constitu-

tional guarantees. See Califano v. Sanders, 430 U.S. 99, 109

(1977); Oestereich v. Selective Service System, 393 U.S. 233,

243 n.6 (1968); St. Joseph Stock Yards Co. v. United States,

298 U.S. 38, 84 (1936). As the Court of Appeals for the

Second Circuit held:

while Congress has the undoubted power to

give, withhold, and restrict the jurisdiction of

the federal courts other than the Supreme Court,

it must not so exercise that power to deprive

any person of life, liberty or property without

due process of law or to take property without

just compensation.

Battaglia v. General Motors, 169 F.2d 254, 257 (2nd Cir.

1948), cert. denied, 355 U.S. 887 (1948).

A legal or constitutional challenge to the CWA, or its

implementing regulations, can never be precluded.

Laguna Gatuna has asserted such challenges to the EPA

enforcement scheme in this case. (App. 18.) Laguna

Gatuna cannot be precluded from testing the legality or

constitutionality of the EPA’s implementation of the

CWA, or its implementing regulations.

Laguna Gatuna asserts that the enforcement action

against it violates the Due Process Clause of the Fifth

Amendment. Nevertheless, the Tenth Circuit has inter-

preted the CWA so as to preclude constitutional review of

33 U.S.C. § 1319(a) orders. Such an interpretation has

been held to raise serious constitutional questions. United

States v. Emerson, 846 F.2d 541, 544 (9th Cir. 1988) (if a

statute is interpreted to preclude constitutional review,

serious doubts about the statute’s constitutionality are

raised); National Federation of Federal Employees v. Wein-

berger, 818 F.2d 935, 940 (D.C. Cir. 1987). Since the claims

raised by Laguna Gatuna are constitutional claims, the

intent of Congress to preclude judicial review of those

claims must be clear. Webster v. Doe, 486 U.S. at 603. A

clear intent of Congress to preclude judicial review in this

case cannot be shown. Since the decision of the Tenth

Circuit is in true, direct and irreconcilable conflict with

this well settled principle of law, Laguna Gatuna’s peti-

tion should be granted.

CONCLUSION

For all of these reasons this Court must grant this

petition to reverse the decision of the Tenth Circuit. For

unlike the petitioner in Thunder Basin Coal, “(Laguna

Gatuna cannot] obtain judicial review if it complies with

the [EPA’S order]... .” Thunder Basin Coal, 127 L.Ed.2d at

46 (Scaiia, J. concurring). This offends the fundamental

constitutional guarantee of due process.

Respectfully submitted,

Topp Stusss WetcH*

*Counsel of Record

WILLIAM Perry PENDLEY

Paut M. Sesy

MountTAIN States LEGAL FOUNDATION

1660 Lincoln Street, Suite 2300

Denver, Colorado 80264

(303) 861-0244

Attorneys for Petitioner

Dated: September 18, 1995

App. 1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LAGUNA GATUNA, INC., a

New Mexico Corporation,

Plaintiff-Appellant, No. 94-2142.

CAROL BROWNER,

Administrator of the

Environmental Protection

Agency; JOE D. WINKLE, Acting

Regional Administrator, Region

VI of the Environmental Pro-

tection Agency;

ENVIRONMENTAL.

PROTECTION AGENCY, Carol

M. Browner, Administrator,

Defendants-Appellees,

STONE SOUTHWEST

CORPORATION, a Delaware

Corporation,

Intervenor.

ee ee ee ee ee ee ee ee ee ee ee ee, ee ee, ee, ee

Appeal from the United States District Court

For the District of New Mexico

D.C. No. CIV-93-772-JC

Todd S. Welch (William Perry Pendley with him on the

briefs), Mountain States Legal Foundation, Denver, CO,

for Plaintiff-appellant.

—————————OO_—

App. 2

John A. Bryson (Robert L. Klarquist and Joshua M.

Levin, Dept. of Justice, Washington, DC, Lois J. Schiffer,

Asst. Atty. Gen., John J. Kelly, U.S. Atty., and Raymond

Hamilton, Asst. U.S. Atty., Albuquerque, NM, Stephen J.

Sweeney, U.S. E.P.A., Washington, DC, with him on the

brief), Dept. of Justice, Washington, DC, for defendants-

appellees.

Before SEYMOUR, Chief Judge, and MOORE and EBEL,

Circuit Judges.

MOORE, Circuit Judge.

The sole question presented by this appeal is whether

a compliance order issued by the Environmental Protec-

tion Agency (EPA) under the Clean Water Act (CWA) is

subject to judicial review. Following the lead of our sister

circuits which have already considered this issue, we

conclude the CWA provides no basis for such a proceed-

ing, despite strong due process arguments advanced by

the appellant. We therefore affirm the judgment of the

district court.

Plaintiff Laguna Gatuna, Inc., is a New Mexico corpo-

ration whose sole business is disposing of industrial

waste water. It dumps the water in a “sinkhole” known as

Laguna Gatuna, to which the company has appropriate

rights. Defendants are the Environmental Protection

Agency and its Administrators.

In 1987, Laguna’s predecessor in interest inquired of

the EPA whether the sinkhole was included in “waters of

the United States” as defined by 40 C.F.R. Sec. 122.2,

App. 3

subjecting it to EPA jurisdiction. The EPA responded by

| letter that it was not, based on the representation the

sinkhole was “not hydrologically connected” to other

waters and there were “no recreational, industrial, or

other uses that could affect interstate commerce.” In 1991,

in the course of a study of playa lakes in New Mexico, the

EPA discovered dead migratory birds near the sinkhole.

In 1992, the EPA issued a compliance order to Laguna,

directing it to cease dumping wastes into the sinkhole.

Laguna complied with the order and discontinued opera-

tions.

Laguna filed an action for declaratory relief in dis-

trict court, claiming the EPA had no jurisdiction to regu-

late the sinkhole because it was not “waters of the United

States,” and the issuance of the compliance order violated

Laguna’s procedural and substantive due process rights.

The district court dismissed the action for lack of subject

matter jurisdiction. This appeal was brought to review

that dismissal.

Questions of jurisdiction are reviewed de novo. Com-

munity Action of Laramie County, Inc. v. Bowen, 866 F.2d

347, 351 n. 1 (10th Cir.1989). When deciding a question of

jurisdiction, a court must construe all relevant allegations

in the light most favorable to the plaintiff. See Mitchell v.

King, 537 F.2d 385, 386 (10th Cir.1976). Accordingly, the

facts set forth above are as alleged in the complaint.

Laguna has asserted federal question jurisdiction under

28 U.S.C. Sec. 1331.

This court has not yet spoken on this precise issue.

But see Child v. United States, 851 F.Supp. 1527 (D.Utah

1994); Howell v. United States Army Corps of Eng’rs, 794

App. 4

F.Supp. 1072 (D.N.M.1992). We follow the authority of

our sister circuits in Southern Ohio Coal Co. v. Office of

Surface Mining, 20 F.3d 1418 (6th Cir.), cert. denied, __

U.S. __, 115 S.Ct. 316, 130 L.Ed.2d 278 (1994); Rueth v.

United States EPA, 13 F.3d 227 (7th Cir.1993); and Southern

Pines Assocs. v. United States, 912 F.2d 713 (4th Cir.1990).

Accordingly, we affirm the dismissal for lack of jurisdic-

tion.

In Southern Pines, the EPA issued a compliance order

to cease dumping in the wetlands on its land in Chesa-

peake, Virginia, required Southern Pines to commence

restoration, and requested further information to make a

“final determination” about the wetlands. 912 F.2d at 714.

Southern Pines filed a complaint for declaratory and

injunctive relief, and the district court dismissed for lack

of subject matter jurisdiction. Id. Based on the legislative

history and language of the CWA, and analogous author-

ity concerning the Comprehensive Environmental

Response, Compensation, and Liability Act (CERCLA)

and the Clean Air Act (CAA), the court was “persuaded

that Congress meant to preclude judicial review of com-

pliance orders under the CWA.” Id. at 716. Southern Pines

argued lack of review was a denial of due process, but the

court rejected this argument. Id. at 717.

In Rueth, the EPA issued Rueth a compliance order to

cease discharges into a wetlands area and to commence

restoration of the wetlands. 13 F.3d at 228. Rueth sought

an injunction in district court against enforcement of the

order, and the case was dismissed for lack of jurisdiction.

Id. On appeal to the Seventh Circuit, Rueth challenged

the EPA’s jurisdiction to regulate the wetlands, claiming,

as Laguna does in the instant case, that the wetlands were

App. 5

not part of the “waters of the United States.” Id. at 231.

The Seventh Circuit nevertheless upheld the dismissal.

Id.; see also Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th

Cir.1990).

In Southern Ohio, the plaintiff coal company proposed

to discharge “untreated and minimally treated” floodwa-

ter from a coal mine into tributaries of the Ohio River. 20

F.3d at 1420. The Office of Surface Mining, Reclamation

and Enforcement of the Department of the Interior (OSM)

issued a cessation order against the company. The com-

pany filed suit seeking a temporary restraining order

against OSM. The cessation order was vacated, and

Southern Ohio began pumping. Id. at 1421. The EPA then

threatened to issue a cease and desist order if Southern

Ohio did not cease pumping. Southern Ohio joined the

EPA as a party and obtained a restraining order against

the EPA as well. The EPA moved to vacate the order for

lack of jurisdiction. Id. at 1422. The district court denied

the motion.

On appeal, the Sixth Circuit joined the Fourth and

Seventh Circuits in holding Congress did not intend to

allow judicial review of compliance orders. Id. at 1427. It

reversed, noting the “enforcement provisions of the CWA

were modeled after the enforcements provisions of the

Clean Air Act,” and “review of the caselaw under the

CAA reveals the uniform holding that judicial review of

pre-enforcement orders, similar to those issued under the

CWA, is not available.” Id. at 1426.

Laguna argues Southern Ohio is distinguishable

because it involved a different quality of waste water

from that discharged into the sinkhole in the instant case.

App. 6

This argument goes to the merits of Laguna’s dispute

with the EPA, not to the federal court’s jurisdiction to

hear that dispute. Laguna further argues Rueth and South-

ern Pines are distinguishable because in the instant case

the EPA is not in the process of conducting any fact-

finding and has issued a final response to Laguna. How-

ever, these distinctions speak to the issue of finality, not

reviewability. The EPA accurately points out that finality

and reviewability are separate issues. Thunder Basin Coal

Co. v. Reich, OS. .., .. & 23, 14S.CL 778, The i. Za,

127 L.Ed.2d 29 (1994). A decision must be final to be

reviewable, but all final decisions are not reviewable.

We consider Rueth, Southern Pines, and Southern Ohio

to be indistinguishable from this case. The plaintiffs in

those cases made challenges to the compliance orders

similar to those brought by Laguna: that their land lay

without the definition of “waters of the United States”

and that the compliance order and lack of federal review

violated guarantees of substantive and procedural due

process. Our sister circuits held there was no jurisdiction

to make such challenges, and we see no reason to dis-

agree.

Laguna argues Riverside Irrigation Dist. v. Stipo, 658

F.2d 762 (10th Cir.1981), is binding authority for the prop-

osition judicial review is available when “the penalties

are so severe that they foreclose a testing of authority by

proceeding with the work.” Id. at 767. However, Laguna

takes this proposition out of context. Riverside is factually

distinguishable: it did not involve a compliance order; it

involved denial of a nationwide permit for which there

was no application procedure; and it involved the con-

templated construction of a water reservoir requiring a

S ebendinel ~~

RET A Ee

App. 7

large capital outlay. Riverside is doctrinally distinguish-

able: it was written before the 1987 amendment to the

CWA providing for judicial review of civil penalties;! and

like Laguna’s arguments on appeal, Riverside addressed

the issue of finality, not reviewability.

Laguna’s policy argument that it should not be neces-

sary to violate an EPA order and risk civil and criminal

penalties to obtain judicial review is well taken. Nev-

ertheless, following the reasoning of our sister circuits,

we reject Laguna’s conclusion such a situation is “consti-

tutionally intolerable.” Judicial review of every unen-

forced compliance order would undermine the EPA’s

regulatory authority.

The law in other circuits squarely precludes jurisdic-

tion on these facts. The district court’s order dismissing

this case is AFFIRMED.

1 The Water Quality Act of 1987 added a mechanism for the

assessment of administrative penalties and judicial review in

federal court of any such penalties. Pub.L. No. 100-4, Title III,

Sec. 314(a), 101 Stat. 48 (1987) (codified as amended at 33 U.S.C.

Sec. 1319(g)).

App. 8

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

LAGUNA GATUNA, INC.,

Plaintiff,

CIV 93-772

vs. JC/WWD

CAROL BROWNER, JOE D.

WINKLE, and the UNITED

STATES ENVIRONMENTAL

PROTECTION AGENCY,

Defendants.

Nm me ee eee ee ee eee”

ORDER

THIS MATTER came on for consideration of the

Defendant United States Environmental Protection

Agency’s Motion to Dismiss, filed September 20, 1993.

The Court heard oral argument on the motion April 8,

1994 at 1:30 p.m: The Court shall adopt the reasoning set

forth in Rueth v. United States EPA, 13 F.3d 227 (7th

Cir.1993); and Southern Pines Assocs. v. United States, 912

F.2d 713 (4th Cir.1990), Hoffman Group, Inc. v. EPA, 902

F.2d 567 (7th Cir.1990) and Howell v. United States Army

Corps of Eng’rs, 794 F.Supp. 1072 (D.N.M.1992). For the

reasons set forth therein, and for the further reasons set

forth on the record, Defendants’ Motion shall be granted.

Wherefore,

IT IS HEREBY ORDERED that, Defendant United

States Environmental Protection Agency’s Motion to Dis-

miss be, and hereby is granted.

IT IS FURTHER ORDERED that this action be, and

hereby is dismissed, in its entirety, for lack of subject

SRI AE BHR

CPPS PSOE MAS

App. 9

matter jurisdiction. All other motions currently pending

in this action are hereby denied as moot.

April 8, 1994

/SIGNED/ JOHN E. CONWAY

UNITED STATES

DISTRICT JUDGE

App. 10

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

LAGUNA GATUNA, INC., A New)

Mexico Corporation,

sieascauas Civil Action No:

vs CIV-93-0772-JC

CAROL M. BROWNER,

Administrator of the

Environmental Protection Agency,

JOE D. WINKLE, Acting Regional

Administrator, Region VI of the

Environmental Protection Agency,

and the ENVIRONMENTAL

PROTECTION AGENCY,

Defendants.

COMPLAINT AND JURY DEMAND

PARTIES

1. Plaintiff Laguna Gatuna, Inc. (Plaintiff Gatuna) is

a corporation, organized and existing under the laws of

the State of New Mexico and is currently in good stand-

ing. Plaintiff Gatuna’s principal place of business is in

Hobbs, Lea County, New Mexico. Plaintiff Gatuna holds

an ownership interest in 400 acres of real property

located in Sections 17 & 18, Range 32 East, Township 20

South, Lea County, New Mexico.

2. Defendant Carol M. Browner is the Administrator

for the Environmental Protection Agency (EPA) and is

sued in her official capacity.

3. Defendant Joe D. Winkle is Acting Regional

Administrator for Region VI of the EPA and is sued in his

App. 11

official capacity. The State of New Mexico is located in

EPA Region VI.

4. The Environmental Protection Agency is an inde-

pendent agency of the United States of America charged

with the duty to enforce laws protecting the environment.

JURISDICTION AND VENUE

5. Jurisdiction is proper in this Court pursuant to 28

U.S.C. § 1331.

6. Venue is proper in the United States District

Court for the District of New Mexico pursuant to 28

U.S.C. § 1391(e)(3), in that the real property which is

involved in this action is located in the State of New

Mexico.

FACTS

7. Plaintiff Gatuna is in the business of disposing of

oil field production waters produced in the area around

Laguna Gatuna (Laguna). Plaintiff Gatuna has con-

structed the necessary facilities to operate its business at

Laguna Gatuna. Plaintiff Gatuna has invested

$1,000,000.00 in the construction of said facilities.

8. Laguna Gatuna is a “sinkhole” located in sections

7, 17, 18, and 19 of Township 20 South, Range 33 East

N.M.P.M., Lea County, New Mexico. No streams empty

into Laguna Gatuna; no streams drain out of Laguna

Gatuna; and there are no surface or groundwater connec-

tions between Laguna Gatuna and any other water body.

Laguna Gatuna consists of approximately 398 acres, of

which a portion is owned by the Federal Government and

App. 12

managed by the Bureau of Land Management (BLM).

Another portion is owned by the State of New Mexico.

The remainder is owned or held with sufficient legal

interest by Plaintiff Gatuna.

9. The land owned by the Federal Government and

managed by the BLM is legally described as follows:

S'/2 of the SE'/s of Section 7; W'/2 of the NW'/s of

the NW!/s, SW'/s of the NW'/s, and NW'!/s of the

SW'/s of Section 17, NE'/s and N'/2 of the SE'/s

of Section 18, N'/2 of the NE'/s of the NE’/s of

Section 19, and that part of the S'/2 of the NE'/s

of the NE'/s of Section 19, lying North of U.S.

Highway 62-180, Township 20 South, Range 33

East N.M.P.M., Lea County, New Mexico.

10. The land owned or held with sufficient legal

interest by Plaintiff Gatuna is legally described as fol- .

lows:

SW'/s of the SW'/s of Section 17; S'/2 of the SE'/s,

SW'/s, E'/2 of the NW'/s, and the SW'/s of the

NW'/s of Section 18, Township 20 South, Range

33 East N.M.P.M., Lea County, New Mexico.

11. The land leased by Plaintiff Gatuna from the

State of New Mexico for the purpose of disposing of

oilfield brine is legally described as follows:

That portion of the NW'/s of the NE'/s and N'/2

of the SE'/s of Section 18, N'/2 of the NE’/s of the

NE!/s of Section 19, and that part of the S'/2 of

the NE?/s of the NE'/s of Section 19, lying North

of U.S. Highway 62-180, Township 20 South,

Range 33 East N.M.P.M., Lea County, New Mex-

ico. ;

App. 13

12. The nearest stream to Laguna Gatuna is the

Pecos River, located approximately 40 miles away.

13. In 1969, Pollution Control Inc., the predecessor

company of Plaintiff Gatuna, obtained a permit from the

BLM and a business lease from the State of New Mexico

to dispose of brine water produced during oil extraction

activities. In 1979, the BLM permit was reissued for a

thirty (30) year period. In 1988 the permit and leases were

transfered to Plaintiff Gatuna and Plaintiff Gatuna owned

and operated same until they were canceled by the BLM,

as hereinafter stated.

14. In 1987, Plaintiff Gatuna’s predecessor in inter-

est, Snyder Ranches, Inc., approached the EPA and

requested a ruling concerning whether Laguna Gatuna

was “waters of the United States” and, therefore, subject

to the provisions of the Clean Water Act 33 U.S.C. § 1311

et seq. On or about August 13, 1987, EPA sent a letter to

Plaintiff Gatuna indicating that Laguna Gatuna was not

“waters of the United States” and disposal was allowed

without a permit.

15. Plaintiff Gatuna alleges upon information and

belief that in the spring of 1991, the United States Fish

and Wildlife Service (FWS) stated in a letter that birds

might use Laguna Gatuna.

16. Plaintiff Gatuna alleges upon information and

belief that based on the information from the FWS, the

EPA indicated Laguna Gatuna may be “waters of the

United States” 33 U.S.C. § 1362(8) and subject to the

Clean Water Act. Plaintiff Gatuna contacted the EPA,

Region VI, and requested a meeting to provide informa-

tion on the status of Laguna Gatuna as waters of the

App. 14

United States. At the meeting EPA indicated it was neces-

sary to make additional studies to ascertain the status of

Laguna Gatuna. Plaintiff Gatuna alleges on information

and belief that the promised studies were never com-

pleted.

17. After the meeting, FWS and EPA, in the course

of studying all of the playa lakes in New Mexico, discov-

ered dead birds in the vicinity of Laguna Gatuna and

without further study or discussion ordered Plaintiff

Gatuna to cease operations.

18. In May of 1992, EPA sent to Plaintiff Gatuna an

Administrative Order requiring Plaintiff Gatuna to cease

all operations involving the disposal of production

waters at Laguna Gatuna or face the possibility of crimi-

nal or civil penalties pursuant to the Clean Water Act.

19. Asa result of the Administrative Order, Plaintiff

Gatuna contacted EPA, Region VI, to present evidence

clearly refuting that Laguna Gatuna was “waters of the

United States” subject to the Clean Water Act.

20. During the course of the meeting, Plaintiff

Gatuna showed EPA that:

a. 1992 was an abnormally wet year with rain in the

Hobbs area being more than 300% of normal;

b. surveys in the spring of 1991 showed no sign that

Laguna Gatuna was being used by any wildlife,

migratory or otherwise;

c. that the dead birds found at Laguna Gatuna in

the spring of 1992 died of “salt poisoning”

according to the autopsy;

App. 15

d. an independent water analysis conducted in June

of 1992 showed the water of Laguna Gatuna to

have 263,000 mg/1 of sodium chloride and a nat-

ural spring flowing into Laguna Gatuna had

251,000 mg/I of sodium chloride;

e. the produced water Plaintiff Gatuna was placing

in Laguna Gatuna had only 35,000 mg/I of

sodium chloride and, therefore, was doing more

to prevent the salt poisoning of the birds than it

was to cause it;

f. birds do not nest or feed on or near Laguna

Gatuna;

g- Laguna Gatuna, under normal circumstances, is

dry;

h. Laguna Gatuna has no shelter or food source for

migratory birds; and

i. the presence of water fowl in the spring of 1992

was an aberration not likely to reoccur under

normal circumstances.

21. Pursuant to the criminal penalty provisions of

the Clean Water Act, a person “who willfully or negli-

gently violates [the CWA] .. . shall be punished by a

fine . . . or imprisonment . . . or by both.” 33 U.S.C.

§ 1319(c)(1).

22. Pursuant to the civil penalty provisions of the

Clean Water Act, any person “who violates [the

CWA]. . . or violates any order issued by the Adminis-

trator . . . shall be subject to a civil penalty not to exceed

$25,000 per day... . ” 33 U.S.C. § 1319%d).

23. Subsequently, the BLM revoked the permit pre-

viously held by Plaintiff Gatuna and Plaintiff Gatuna is

semeeiiiiimiiiiiiiieiaaiiii

App. 16

now out of business as a result of the decision of the EPA

and the BLM.

24. The issuance of the Administrative Order is

final agency action and this matter is ripe for judicial

review pursuant to the Administrative Procedure Act

(APA) 5 U.S.C. § 706 et seq. and because of the due

process claims under the United States Constitution.

COUNT I

DECLARATORY JUDGMENT AS TO

CLEAN WATER ACT JURISDICTION

25. Plaintiff Gatuna realleges and incorporates by

reference herein each and every allegation contained in

paragraphs 1 through 21 of its complaint.

26. Section 301 of the Clean Water Act, 33 U.S.C.

§ 1311, provides that the discharge of any “pollutant”

into “navigable waters” is unlawful unless authorized by

a permit. The Clean Water Act defines “navigable waters”

as the “waters of the United States, including the terri-

torial seas.” 33 U.S.C. § 1362(8).

27. The EPA has promulgated certain regulations,

which purport to “define” “waters of the United States.”

Pursuant to 40 C.F.R. § 230.3(s) “waters of the United

States” are defined to include:

all waters which are currently used or were

used in the past, or may be susceptible to use in

interstate or foreign commerce; all . . . playa

lakes .. . the use, degradation or destruction of

which could affect interstate or foreign com-

merce including . . . waters which are or could

be used by interstate or foreign travelers for

App. 17

recreational or other purposes . . . [and waters]

which are used or could be used for industrial

purposes by industries in interstate commerce.”

28. Asa result of the regulations, the United States

Government, through the EPA, has asserted Clean Water

Act jurisdiction over the property owned by Plaintiff

Gatuna and the property managed by the BLM for which

Plaintiff Gatuna has a permit.

29. The property owned by Plaintiff Gatuna and the

property owned by the BLM for which Plaintiff Gatuna

holds a permit contain no “waters of the United States”

subject to the regulations of the Clean Water Act.

30. The EPA regulations provide that the only

administrative process which would allow Plaintiff

Gatuna to challenge the decision of the EPA that Laguna

Gatuna is “waters of the United States” is if Plaintiff

Gatuna violates the cease and desist order and subjects

itself to the criminal and civil penalties authorized by the

Clean Water Act which amount to the possibility of goiig

to jail or $25,000 per day as a civil penalty.

31. Additionally, the United States Government and

the EPA are precluded from asserting Clean Water Act

jurisdiction over the property of Plaintiff Gatuna and the

BLM property for which Plaintiff Gatuna holds a permit

for one or more of the following reasons: )

a. The EPA’s purported “interpretation” and/or

“construction” of “waters of the United States” as

applied to Plaintiff Gatuna’s property exceeds the

scope of the EPA’s statutory authority;

b. As applied, the EPA’s purported “interpretation”

and/or “construction” of “waters of the United

App. 18

States” would exceed Congress’ power to regu-

late interstate commerce under Article 1, Section

8 of the United States Constitution;

c. The EPA’s actions in expanding, and in effect

amending, “waters of the United States” under

the guise of purported “interpretation” and/or

~—~ “construction” of “waters of the United States”

constitutes rulemaking and as such is invalid

because the rulemaking was and is being carried

out in violation of the public notice and comment

provisions of the Administrative Procedures Act,

5 U.S.C. § 553; and

d. The Government's assertion of Clean Water Act

jurisdiction as applied violates Plaintiff Gatuna’s

rights of due process and equal protection under

the law.

32. Gatuna has suffered irreparable harm as a result

of the decision by the EPA. If the declaratory judgment

sought herein is not granted, Plaintiff Gatuna will con-

tinue to suffer irreparable harm in that:

a. Plaintiff Gatuna will be forced to choose between

exercising its rights to use its private property

and “violating” the Clean Water Act;

b. BLM has revoked the permit held by Plaintiff

Gatuna as a result of the decision made by the

EPA that Laguna Gatuna is “waters of the United

States;”

c. If Plaintiff Gatuna does continue its permitted

operation, the government will accuse Plaintiff

Gatuna of being a “flagrant and multiple viola-

togs”

d. Plaintiff Gatuna has been and continues to be

harmed, if not destroyed, by the “impending

App. 19

charges” threatened explicitly and implicitly in

the EPA’s cease and desist order, in that Plaintiff

Gatuna’s business reputation has been dimin-

ished;

e. Plaintiff Gatuna may be subjected to criminal

liability even though the question as to whether

Laguna Gatuna is “waters of the United States”

has not been established and is based on reason-

able differences of opinion; and

f. Plaintiff Gatuna’s credit relationship with lenders

has been impaired.

33. A declaration as to the rights and other legal

relations with respect to the property owned by Plaintiff

Gatuna and the ability of the United States Government

and the EPA to assert Clean Water Act jurisdiction over

this property is required.

34. Plaintiff Gatuna is entitled to a plenary trial on

the merits before this Court on the issue of whether the

United States Government has Clean Water Act jurisdic-

tion over Laguna Gatuna.

COUNT II

PROCEDURAL DUE PROCESS VIOLATION

(Taking of a liberty interest)

35. Plaintiff Gatuna realleges and incorporates by

reference herein each and every allegation contained in

paragraphs 1 through 21 of its complaint.

36. Procedures implemented by the EPA do not

allow Plaintiff Gatuna the opportunity to challenge,

before an unbiased decision maker, that Laguna Gatuna is

“waters of the United States,” unless Plaintiff Gatuna is

App. 20

willing to Violate the “cease and desist order” and subject

itself and its employees, directors, officers and represen-

tatives to possible civil and criminai penalties of the

Clean Water Act.

37. Plaintiff Gatuna has a constitutional liberty

interest in its ability to contract and to engage in the

business of disposing of production waters within the

bounds established by the law.

38. Since the actions of the EPA affect the above

described liberty interest of Plaintiff Gatuna, Plaintiff

Gatuna is guaranteed the right to a procedure to deter-

mine the factual basis and legality of the decision of the

EPA to declare Laguna Gatuna “waters of the United

States.”

39. Whether Laguna Gatuna is “waters of the

United States” is a factual dispute in need of resolution.

40. The actions of the EPA deprive Plaintiff Gatuna

of constitutional liberties without due process of law as

guaranteed by the Fifth Amendment and, as such, are

unconstitutional actions.

COUNT Iil

PROCEDURAL DUE PROCESS VIOLATION

(Taking of a property interest)

41. Plaintiff Gatuna realleges and incorporates by

reference herein each and every allegation contained in

paragraphs 1 through 21 of its complaint.

42. EPA is an independent agency of the United

States. The actions of the EPA in declaring Laguna

Gatuna “waters of the United States” are state actions,

App. 21

subject to the due process protections of the Fifth Amend-

ment to the United States Constitution.

43. The actions of the EPA in declaring Laguna

Gatuna “waters of the United States” deprives Plaintiff

Gatuna of a property right without due process as guar-

anteed by the Fifth Amendment to the United States

Constitution.

44. Whether Laguna Gatuna is “waters of the

United States” is a factual dispute in need of resolution.

45. Actions of the EPA in depriving Plaintiff Gatuna

of a constitutionally protected property right without due

process is unconstitutional state action.

COUNT IV

SUBSTANTIVE DUE PROCESS VIOLATION

(Violation of constitutional equal protection guarantees)

46. Plaintiff Gatuna realleges and incorporates by

reference herein each and every allegation contained in

paragraphs 1 through 21 of its complaint.

47. The Clean Water Act and its implementing regu-

lations are an arbitrary and invidious use of government

power in that Plaintiff Gatuna has no opportunity to

challenge the decision without subjecting itself to the

civil and criminal penalties of the Clean Water Act and as

such is an unconstitutional exercise of authority.

App. 22

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Gatuna respectfully requests:

1. An Order of Declaratory Judgment declaring that

Laguna Gatuna, as described above, is not “navigable

water,” is not “water of the United States,” and is not in

any way subject to jurisdiction under the Clean Water Act

by the United States Government, including the Army

Corps of Engineers and the EPA;

2. An order declaring that EPA must provide due

process before constitutionally guaranteed liberty and

property interests are taken;

3. An order declaring that the actions of EPA are an

unconstitutional exercise of authority;

4. Plaintiff Gatuna’s costs and attorneys’ fees

incurred in bringing this action; and

5. Such other and further relief as to the court

seems just and equitable in the premises.

App. 23

JURY DEMAND

PLAINTIFF GATUNA DEMANDS A TRIAL BY JURY

OF ANY AND ALL ISSUES IN THIS ACTION TRIABLE

OF RIGHT BY A JURY.

DATED this day 22nd of June, 1993.

/signed/ Todd S. Welch

WILLIAM PERRY PENDLEY

TODD S. WELCH

MOUNTAIN STATES LEGAL

FOUNDATION

1660 Lincoln Street

Suite 2300

Denver, Colorado 80264

(303) 861-0244

AND

/signed/ J.W. Neal

J.W. NEAL

J.W. NEAL, P.C.

Box 278

Hobbs, New Mexico 88240

(505) 397-3614

Attorneys for Plaintiff Laguna Gatuna, Inc.

App. 24

FIFTH AMENDMENT

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put in

jeopardy of life or limb; nor shall be compelled in any

criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

App. 25

33 U.S.C.A. § 1319. Enforcement

(a) State enforcement; compliance orders

(1) Whenever, on the basis of any information avail-

able to him, the Administrator finds that any person is in

violation of any condition or limitation which implements

section 1311, 1312, 1316, 1317, 1318, 1328, or 1345 of this

title in a permit issued by a State under an approved

permit program under section 1342 or 1344 of this title, he

shall proceed under his authority in paragraph (3) of this

subsection or he shall notify the person in alleged viola-

tion and such State of such finding. If beyond the thir-

tieth day after the Administrator’s notification the State

has not commenced appropriate enforcement action, the

Administrator shall issue an order requiring such person

to comply with such condition or limitation or shall bring

a civil action in accordance with subsection (b) of this

section.

(2) Whenever, on the basis of information available

to him, the Administrator finds that violations of permit

conditions or limitations as set forth in paragraph (1) of

this subsection are so widespread that such violations

appear to result from a failure of the State to enforce such

permit conditions or limitations effectively, he shall so

notify the State. If the Administrator finds such failure

extends beyond the thirtieth day after such notice, he

shall give public notice of such finding. During the

period beginning with such public notice and ending

when such State satisfies the Administrator that it will

enforce such conditions and limitations (hereafter

referred to in this section as the period of “federally

assumed enforcement”), except where an extension has

App. 26

been granted under paragraph (5)(B) of this subsection,

the Administrator shall enforce any permit condition or

limitation with respect to any person -

(A) by issuing an order to comply with such

condition or limitation, or

(B) by bringing a civil action under subsection

(b) of this section.

(3) Whenever on the basis of any information avail-

able to him the Administrator finds that any person is in

violation of section 1311, 1312, 1316, 1317, 1318, 1328, or

1345 of this title, or is in violation of any permit condition

or limitation implementing any of such sections in a

permit issued under section 1342 of this title by him or by

a State or in a permit issued under section 1344 of this

title by a State, he shall issue an order requiring such

person to comply with such section or requirement, or he

shall bring a civil action in accordance with subsection (b)

of this section.

(4) A copy of any order issued under this subsec-

tion shall be sent immediately by the Administrator to

the State in which the violation occurs and other affected

States. In any case in which an order under this subsec-

tion (or notice to a violator under paragraph (1) of this

subsection) is issued to a corporation, a copy of such

order (or notice) shall be served on any appropriate cor-

porate officers. An order issued under this subsection

relating to a violation of section 1318 of this title shall not

take effect until the person to whom it is issued has had

an opportunity to confer with the Administrator concern-

ing the alleged violation.

App. 27

(5)(A) Any order issued under this subsection shall

be by personal service, shall state with reasonable speci-

ficity the nature of the violation, and shall specify a time

for compliance not to exceed thirty days in the case of a

violation of an interim compliance schedule or operation

and maintenance requirement and not to exceed a time

the Administrator determines to be reasonable in the case

of a violation of a final deadline, taking into account the

seriousness of the violation and any good faith efforts to

comply with applicable requirements.

(B) The Administrator may, if he determines (i) that

any person who is a violator of, or any person who is

otherwise not in compliance with, the time requirements

under this chapter or in any permit issued under this

chapter, has acted in good faith, and has made a commit-

ment (in the form of contracts or other securities) of

necessary resources to achieve compliance by the earliest

possible date after July 1, 1977, but not later than April 1,

1979; (ii) that any extension under this provision will not

result in the imposition of any additional controls on any

other point or nonpoint source; (iii) that an application

for a permit under section 1342 of this title was filed for

such person prior to December 31, 1974; and (iv) that the

facilities necessary for compliance with such require-

ments are under construction, grant an extension of the

date referred to in section 1311(b)(1)(A) of this title to a

date which will achieve compliance at the earliest time

possible but not later than April 1, 1979.

(6) Whenever, on the basis of information available

to him, the Administrator finds (A) that any person is in

violation of section 1311(b)(1)(A) or (C) of this title, (B)

that such person cannot meet the requirements for a time

App. 28

extension under section 1311(i)(2) of this title, and (C)

that the most expeditious and appropriate means of com-

pliance with this chapter by such person is to discharge

into a publicly owned treatment works, then, upon

request of such person, the Administrator may issue an

order requiring such person to comply with this chapter

at the earliest date practicable, but not later than July 1,

1983, by discharging into a publicly owned treatment

works if such works concur with such order. Such order

shall include a schedule of compliance.

(b) Civil actions

The Administrator is authorized to commence a civil

action for appropriate relief, including a permanent or

temporary injunction, for any violation for which he is

authorized to issue a compliance order uader subsection

(a) of this section. Any action under this subsection may

be brought in the district court of the United States for

the district in which the defendant is located or resides or

is doing business, and such court shall have jurisdiction

to restrain such violation and to require compliance.

Notice of the commencement of such action shall be

given immediately to the appropriate State.

(1) Negligent violations

Any person who -

(A) negligently violates section 1311, 1312,

1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or

any permit condition or limitation implementing any of

such sections in a permit issued under section 1342 of this

App. 29

title by the Administrator or by a State, or any require-

ment imposed in a pretreatment program approved

- under section 1342(a)(3) or (b)(8) of this title or in a

permit issued under section 1344 of this title by the

Secretary of the Army or by a State; or

(B) negligently introduces into a sewer system

or into a publicly owned treatment works any pollutant

or hazardous substance which such person knew or rea-

sonably should have known could cause personal injury

or property damage or, other than in compliance with all

applicable Federal, State, or local requirements or per-

mits, which causes such treatment works to violate any

effluent limitation or condition in any permit issued to

the treatment works under section 1342 of this title by the

Administrator or a State;

shall be punished by a fine of not less than $2,500 nor

more than $25,000 per day of violation, or by imprison-

ment for not more than 1 year, or by both. If a conviction

of a person is for a violation committed after a first

conviction of such person under this paragraph, punish-

ment shall be by a fine of not more than $50,000 per day

of violation, or by imprisonment of not more than 2

years, or by both.

(2) Knowing violations

Any person who -

(A) knowingly violates section 1311, 1312, 1316,

1317, 1318, 1321(b)(3), 1328, or 1345 of this title, or any

permit condition or limitation implementing any of such

sections in a permit issued under section 1342 of this title

by the Administrator or by a State, or any requirement

App. 30

imposed in a pretreatment program approved under sec-

tion 1342(a)(3) or (b)(8) of this title or in a permit issued

under section 1344 of this title by the Secretary of the

Army or by a State; or

(B) knowingly introduces into a sewer system

or into a publicly owned treatment works any pollutant

or hazardous substance which such person knew or rea-

sonably should have known could cause personal injury

or property damage or, other than in compliance with all

applicable Federal, State, or local requirements or per-

mits, which causes such treatment works to violate any

effluent limitation or condition in a permit issued to the

treatment works under section 1342 of this title by the

Administrator or a State;

shall be punished by a fine of not less than $5,000 nor

more than $50,000 per day of violation, or by imprison-

ment for not more than 3 years, or by both. If a conviction

of a person is for a violation committed after a first

conviction of such person under this paragraph, punish-

ment shall be by a fine of not more than $100,000 per day

of violation, or by imprisonment of not more than 6

years, or by both.

(3) Knowing endangerment

(A) General rule

Any person who knowingly violates section 1311,

1312, 1313, 1316, 1317, 1318, 1321(b)(3), 1328, or 1345 of

this title, or any permit condition or limitation imple-

menting any of such sections in a permit issued under

section 1342 of this title by the Administrator or by a

State, or in a permit issued under section 1344 of this title

App. 31

by the Secretary of the Army or by a State, and who

knows at that time that he thereby places another person

in imminent danger of death or serious bodily injury,

shall, upon conviction, be subject to a fine of not more

than $250,000 or imprisonment of not more than 15 years,

or both. A person which is an organization shall, upon

conviction of violating this subparagraph, be subject to a

fine of not more than $1,000,000. If a conviction of a

person is for a violation committed after a first conviction

of such person under this paragraph, the maximum pun-

ishment shall be doubled with respect to both fine and

imprisonment.

(B) Additional provisions

For the purpose of subparagraph (A) of this para-

graph —-

(i) in determining whether a defendant

who is an individual knew that his conduct placed

another person in imminent danger of death or serious

bodily injury -

(I) the person is responsible only for

actual awareness or actual belief that he possessed; and

(II) knowledge possessed by a person

other than the defendant but not by the defendant him-

self may not be attributed to the defendant,

except that in proving the defendant’s possession of

actual knowledge, circumstantial evidence may be used,

including evidence that the defendant took affirmative

steps to shield himself from relevant information;

(ii) it is an affirmative defense to prosecu-

tion that the conduct charged was consented to by the

App. 32

person endangered and that the danger and conduct

charged were reasonably foreseeable hazards of -

(I) an occupation, a business, or a pro-

fession; or

(II) medical treatment or medical or

scientific experimentation conducted by professionally

approved methods and such other person had been made

aware of the risks involved prior to giving consent;

and such defense may be established under this sub-

paragraph by a preponderance of the evidence;

(iii) the term “organization” means a legal

entity, other than a government, established or organized

for any purpose, and such term includes a corporation,

company, association, firm, partnership, joint stock com-

pany, foundation, institution, trust, society, union, or any

other association of persons; and

(iv) the term “serious bodily injury” means

bodily injury which involves a substantial risk of death,

unconsciousness, extreme physical pain, protracted and

obvious disfigurement, or protracted loss or impairment

of the function of a bodily member, organ, or mental

faculty.

(4) False statements

Any person who knowingly makes any false material

statement, representation, or certification in any applica-

tion, record, report, plan, or other document filed or

required to be maintained under this chapter or who

knowingly falsifies, tampers with, or renders inaccurate

App. 33

any monitoring device or method required to be main-

tained under this chapter, shall upon conviction, be pun-

ished by a fine of not more than $10,000, or- by

imprisonment for not more than 2 years, or by both. If a

conviction of a person is for a violation committed after a

first conviction of such person under this paragraph,

punishment shall be by a fine of not more than $20,000

per day of violation, or by imprisonment of not more

than 4 years, or by both.

(5) Treatment of single operational upset

For purposes of this subsection, a single operational

upset which leads to simultaneous violations of more

than one pollutant parameter shall be treated as a single

violation.

(6) Responsible corporate officer as “person”

For the purpose of this subsection, the term “person”

means, in addition to the definition contained in section

1362(5) of this title, any responsible corporate officer.

(7) Hazardous substance defined

For the purpose of this subsection, the term “hazard-

ous substance” means (A) any substance designated pur-

suant to section 1321(b)(2)(A) of this title, (B) any

element, compound, mixture, solution, or substance des-

ignated pursuant to section 9602 of Title 42, (C) any

hazardous waste having the characteristics identified

under or listed pursuant to section 3001 of the Solid

Waste Disposal Act [42 U.S.C.A. Sec. 6921] (but not

including any waste the regulation of which under the

Solid Waste Disposal Act [42 U.S.C.A. Sec. 6901 et seq.|

has been suspended by Act of Congress), (D) any toxic

App. 34

pollutant listed under section 1317(a) of this title, and (E)

any imminently hazardous chemical substance or mixture

with respect to which the Administrator has taken action

pursuant to section 2606 of Title 15.

(d) Civil penalties; factors considered in determining

amount

Any person who violates section 1311, 1312, 1316,

1317, 1318, 1328, or 1345 of this title, or any permit

condition or limitation implementing any of such sections

in a permit issued under section 1342 of this title by the

Administrator, or by a State, or in a permit issued under

section 1344 of this title by a State, or any requirement

imposed in a pretreatment program approved under sec-

tion 1342(a)(3) or (b)(8) of this title,! and any person who

violates any order issued by the Administrator under

subsection (a) of this section, shall be subject to a civil

penalty not to exceed $25,000 per day for each violation.

In determining the amount of a civil penalty the court

shall consider the seriousness of the violation or viola-

tions, the economic benefit (if any) resulting from the

violation, any history of such violations, any good-faith

efforts to comply with the applicable requirements, the

economic impact of the penalty on the violator, and such

other matters as justice may require. For purposes of this

subsection, a single operational upset which leads to

simultaneous violations of more than one pollutant

parameter shall be treated as a single violation.

1 So in original.

App. 35

(e) State liability for judgments and expenses

Whenever a municipality is a party to a civil action

brought by the United States under this section, the State

in which such municipality is located shall be joined as a

party. Such State shall be liable for payment of any judg-

ment, or any expenses incurred as a result of complying

with any judgment, entered against the municipality in

such action to the extent that the laws of that State

prevent the municipality from raising revenues needed to

comply with such judgment.

(f) Wrongful introduction of pollutants into treatment

works

Whenever, on the basis of any information available

to him, the Administrator finds that an owner or operator

of any source is introducing a pollutant into a treatment

works in violation of subsection (d) of section 1317 of this

title, the Administrator may notify the owner or operator

of such treatment works and the State of such violation. If

the owner or operator of the treatment works does not

commence appropriate enforcement action within 30 days

of the date of such notification, the Administrator may

commence a civil action for appropriate relief, including

but not limited to, a permanent or temporary injunction,

against the owner or operator of such treatment works. In

any such civil action the Administrator shall join the

owner or operator of such source as a party to the action.

Such action shall be brought in the district court of the

United States in the district in which the treatment works

is located. Such court shall have jurisdiction to restrain

such violation and to require the owner or operator of the

treatment works and the owner or operator of the source

App. 36

to take such action as may be necessary to come into

compliance with this chapter. Notice of commencement of

any such action shall be given to the State. Nothing in

this subsection shall be construed to limit or prohibit any

other authority the Administrator may have under this

chapter.

(g) Administrative penalties

(1) Violations

Whenever on the basis of any information available —

(A) the Administrator finds that any person has

violated section 1311, i312, 1316, 1317, 1318, 1328, or 1345

of this title, or has violated any permit condition or

limitation implementing any of such sections in a permit

issued under section 1342 of this title by the Administra-

tor or by a State, or in a permit issued under section 1344

of this title by a State, or

(B) the Secretary of the Army (hereinafter in

this subsection referred to as the “Secretary”) finds that

any person has violated any permit condition or limita-

tion in a permit issued under section 1344 of this title by

the Secretary,

‘the Administrator or Secretary, as the case may be,

may, after consultation with the State in which the viola-

tion occurs, assess a class I civil penalty or a class II civil

penalty under this subsection.

(2) Classes of penalties

(A) Class I

The amount of a class I civil penalty under paragraph

(1) may not exceed $10,000 per violation, except that the

App. 37

maximum amount of any class I civil penalty under this

subparagraph shall not exceed $25,000. Before issuing an

order assessing a civil penalty under this subparagraph,

the Administrator or the Secretary, as the case may be,

shall give to the person to be assessed such penalty

written notice of the Administrator’s or Secretary's pro-

posal to issue such order and the opportunity to request,

within 30 days of the date the notice is received by such

person, a hearing on the proposed order. Such hearing

shall not be subject to section 554 or 556 of Title 5, but

shall provide a reasonable opportunity to be heard and to

present evidence.

(B) Class Il

The amount of a class II civil penalty under para-

graph (1) may not exceed $10,000 per day for each day

during which the violation continues; except that the

maximum amount of any class II civil penalty under this

subparagraph shall not exceed $125,000. Except as other-

wise provided in this subsection, a class II civil penalty

shall be assessed and collected in the same manner, and

subject to the same provisions, as in the case of civil

penalties assessed and collected after notice and oppor-

tunity for a hearing on the record in accordance with

section 554 of Title 5. The Administrator and the Secre-

tary may issue rules for discovery procedures for hear-

ings under this subparagraph.

(3) Determining amount

In determining the amount of any penalty assessed

under this subsection, the Administrator or the Secretary,

as the case may be, shall take into account the nature,

circumstances, extent and gravity of the violation, or

App. 38

violations, and, with respect to the violator, ability to pay,

any prior history of such violations, the degree of cul-

pability, economic benefit or savings (if any) resulting

from the violation, and such other matters as justice may

require. For purposes of this subsection, a single opera-

tional upset which leads to simultaneous violations of

more than one pollutant parameter shall be treated as a

single violation.

(4) Rights of interested persons

(A) Public notice

Before issuing an order assessing a civil penalty

under this subsection the Administrator or Secretary, as

the case may be, shall provide public notice of and rea-

sonable opportunity to comment on the proposed issu-

ance of such order.

(B) Presentation of evidence

Any person who comments on a proposed assess-

ment of a penalty under this subsection shall be given

notice of any hearing held under this subsection and of

the order assessing such penalty. In any hearing held

under this subsection, such person shall have a reason-

able opportunity to be heard and to present evidence.

If no hearing is held under paragraph (2) before

issuance of an order assessing a penalty under this sub-

section, any person who commented on the proposed

assessment may petition, within 30 days after the issu-

ance of such order, the Administrator or Secretary, as the

case may be, to set aside such order and to provide a

hearing on the penalty. If the evidence presented by the

App. 39

petitioner in support of the petition is material and was

not considered in the issuance of the order, the Adminis-

trator or Secretary shall immediately set aside such order

and provide a hearing in accordance with paragraph

(2)(A) in the case of a class I civil penalty and paragraph

(2)(B) in the case of a class II civil penalty. If the Adminis-

trator or Secretary denies a hearing under this subpara-

graph, the Administrator or Secretary shall provide to the

petitioner, and publish in the Federal Register, notice of

and the reasons for such denial.

(5) Finality of order

An order issued under this subsection shall become

final 30 days after its issuance unless a petition for judi-

cial review is filed under paragraph (8) or a hearing is

requested under paragraph (4)(C). If such a hearing is

denied, such order shall become final 30 days after such

denial.

(6) Effect of order

(A) Limitation on actions under other sections

Action taken by the Administrator or the Secretary,

as the case may be, under this subsection shall not affect

or limit the Administrator’s or Secretary’s authority to

enforce any provision of this chapter; except that any

violation —

(i) with respect to which the Administrator

or the Secretary has commenced and is diligently pros-

ecuting an action under this subsection,

(ii) with respect to which a State has com-

menced and is diligently prosecuting an action under a

State law comparable to this subsection, or

App. 40

(iii) for which the Administrator, the Secre-

tary, or the State has issued a final order not subject to

further judicial review and the violator has paid a penalty

assessed under this subsection, or such comparable State

law, as the case may be,

shall not be the subject of a civil penalty action under

subsection (d) of this section or section 1321(b) of this

title or section 1365 of this title.

(B) Applicability of limitation with respect to

citizen suits

The limitations contained in subparagraph (A) on

civil penalty actions under section 1365 of this title shall

not apply with respect to any violation for which -

(i) a civil action under section 1365(a)(1) of

this title has been filed prior to commencement of an

action under this subsection, or

(ii) notice of an alleged violation of section

1365(a)(1) of this title has been given in accordance with

section 1365(b)(1)(A) of this title prior to commencement

of an action under this subsection and an action under

section 1365(a)(1) of this title with respect to such alleged

violation is filed before the 120th day after the date on

which such notice is given.

(7) Effect of action on compliance

No action by the Administrator or the Secretary

under this subsection shall affect any person’s obligation

to comply with any section of this chapter or with the

terms and conditions of any permit issued pursuant to

section 1342 or 1344 of this title.

Peet eh

ita atacand

App. 41

(8) Judicial review

Any person against whom a civil penalty is assessed

under this subsection or who commented on the pro-

posed assessment of such penalty in accordance with

paragraph (4) may obtain review of such assessment -

(A) in the case of assessment of a class I civil

penalty, in the United States District Court for the District

of Columbia or in the district in which the violation is

alleged to have occurred, or

(B) in the case of assessment of a class II civil

penalty, in United States Court of Appeals for the District

of Columbia Circuit or for any other circuit in which such

person resides or transacts business,

by filing a notice of appeal in such court within the

30-day period beginning on the date the civil penalty

order is issued and by simultaneously sending a copy of

such notice by certified mail to the Administrator or the

Secretary, as the case may be, and the Attorney General.

The Administrator or the Secretary shall promptly file in

such court a certified copy of the record on which the

order was issued. Such court shall not set aside or

remand such order unless there is not substantial evi-

dence in the record, taken as a whole, to support the

finding of a violation or unless the Administrator’s or

Secretary’s assessment of the penalty constitutes an abuse

of discretion and shall not impose additional civil penal-

ties for the same violation unless the Administrator’s or

Secretary’s assessment of the penalty constitutes an abuse

of discretion.

App. 42

(9) Collection

If any person fails to pay an assessment of a civil

penalty -

(A) after the order making the assessment has

become final, or

(B) after a court in an action brought under

paragraph (8) has entered a final judgment in favor of the

Administrator or the Secretary, as the case may be,

the Administrator or the Secretary shall request the

Attorney General to bring a civil action in an appropriate

district court to recover the amount assessed (plus inter-

est at currently prevailing rates from the date of the final

order or the date of the final judgment, as the case may

be). In such an action, the validity, amount, and appro-

priateness of such penalty shall not be subject to review.

Any person who fails to pay on a timely basis the amount

of an assessment of a civil penalty as described in the first

sentence of this paragraph shall be required to pay, in

addition to such amount and interest, attorneys fees and

costs for collection proceedings and a quarterly nonpay-

ment penalty for each quarter during which such failure

to pay persists. Such nonpayment penalty shall be in an

amount equal to 20 percent of the aggregate amount of

such person’s penalties and nonpayment penalties which

are unpaid as of the beginning of such quarter.

(10) Subpoenas

The Administrator or Secretary, as the case may be,

may issue subpoenas for the attendance and testimony of

witnesses and the production of relevant papers, books,

or documents in connection with hearings under this

App. 43

subsection. In case of contumacy or refusal to obey a

subpoena issued pursuant to this paragraph and served

upon any person, the district court of the United States

for any district in which such person is found, resides, or

transacts business, upon application by the United States

and after notice to such person, shall have jurisdiction to

issue an order requiring such person to appear and give

testimony before the administrative law judge or to

appear and produce documents before the administrative

law judge, or both, and any failure to obey such order of

the court may be punished by such court as a contempt

thereof.

(11) Protection of existing procedures

Nothing in this Subsection shall change the pro-

cedures existing on ‘the day before February 4, 1987,

under other subsections of this section for issuance and

enforcement of orders by the Administrator.

App. 44

5 U.S.C.A. § 704. Actions reviewable

Agency action made reviewable by statute and final

agency action for which there is no other adequate rem-

edy in a court are subject to judicial review. A prelimi-

nary, procedural, or intermediate agency action or ruling

not directly reviewable is subject to review on the review

of the final agency action. Except as otherwise expressly

required by statute, agency action otherwise final is final

for the purposes of this section whether or not there has

been presented or determined an application for a declar-

atory order, for any form of reconsideration, or, unless

the agency otherwise requires by rule and provides that

the action meanwhile is inoperative, for an appeal to

superior agency authority.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.