Petition for Writ of Certiorari — Fairbanks North Star Borough v. United States Army Corps of Engineers (No. 08-1052)

/ Supreme Court, U.S.

\W\ \ FILED

No. _ 081052 FEB 13 2009

In the OFFICE OF THE CLERK

Supreme Court of the United States

FAIRBANKS NORTH STAR BOROUGH,

Petitioner.

Vv.

U.S. ARMY CORPS OF ENGINEERS:

JOHN W. PEABODY; and KEVIN J. WILSON,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

&

vv

PETITION FOR WRIT OF CERTIORARI

JOSEPH W. MILLER JAMES S. BURLING

Fairbanks North Star *DAMIEN M. SCHIF!

Borough Counsel of Record

P.O. Box 71267 Pacific Legal Foundation

Fairbanks, Alaska 99707 3900 Lennane Drive,

Telephone: (907) 459-1318 Suite 200

Facsimile: (907) 459-1155 Sacramento, California 95834

Telephone: (916) 419-7111

Kacsimile: (916) 419.7747

Counsel for Petittoner

QUESTION PRESENTED

Is a Jurisdictional Determination under the Clean

Water Act, finding that Petitioner's property is subject

to that Act’s strictures, a “final agency action” subject

to judicial review under the Administrative Procedure

Act, where the Jurisdictional Determination:

(1) affords the landowner a viable estoppel defense in

a future enforcement action; (2) decides whether a

CWA permit is necessary; and (3) subjects the

landowner to elevated penalties?

QUESTION PRESENTED

TABLE OF AUTHORITIES

i

TABLE OF CONTENTS

PETITION FOR WRIT OF CERTIORARI .

OPINIONS BELOW

JURISDICTION

STATUTORY AND REGULATORY

PROVISIONS AT ISSUE

INTRODUCTION

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

L.

QUESTION OF LAW, NAMELY,

WHETHER A LANDOWNER MAY

SEEK JUDICIAL REVIEW OF A

JURISDICTIONAL DEVERMINATION ...

A. Legal Consequences Flow from

a Jurisdictiona] Determination ......

B. ‘The Ninth Circuit’s Decision Conflicts

with the Settled Rule That Agency

Decisions on Permit Applications

Are Subject to Judicial Review

rHIS COURT SHOULD GRANT

THE PETITION BECAUSE THE

DECISION CONFLICTS WITH

LEEDOM v. KYNE AND DECISIONS

OF OTHER COURTS OF APPEALS

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THIS COURT SHOULD GRANT THE

PETITION TO SETTLE AN IMPORTANT

i

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ii

TABLE OF CONTENTS—Continued

Page

See Ee Ds re ly aeica baa a es 21

APPENDIX

Appendix A - Fairbanks N. Star Borough v. U.S.

Army Corps of Eng’rs, 543 F.3d 586 (9th Cir. 2008)

Appendix B - Fairbanks N. Star Borough v. U.S.

Army Corps of Eng’rs, Order Granting Defendants’

Motion for Judgment on the Pleadings (D. Alaska

May 18, 2007)

Appendix C - Fairbanks N. Star Borough v. U.S.

Army Corps of Eng’rs, Order (9th Cir. Nov. 20, 2008)

lV

TABLE OF AUTHORITIES

Cases

Bennett v. Spear, 520 U.S. 154 (1997)

Chicago & S. Air Lines v. Waterman S.S. Corp.,

333 U.S. 103 (1948)

Child v. United States,

851 F. Supp. 1527 (D. Utah 1994)

Fairbanks N. Star Borough v.

U.S. Army Corps of Eng’rs,

543 F.3d 586 (Oth Cir. 2008) .... 1, §

Gen. Elec. Co. v. EPA.

290 F.3d 377 (D.C. Cir. 2002)

Hanson v. United States,

710 F. Supp. 1105 (E.D. Tex. 1989)

Leedom v. Kyne, 358 U.S. 184 (1958)

Leslie Salt Co. v. United States,

789 F. Supp. 1030 (N.D. Cal. 1991)

Michigan Peat, a Div. of Bayv-Houston Towing

Co. v. EPA, 175 F.3d 422 (6th Cir. 1999)

Natl Ass'n of Home Builders v. U.S. Army Corps

of Engrs, 417 I°.38d 1272 (D.C. Cir. 2005)

Or. Natural Desert Ass'n v. U.S. Forest Serv..

465 F.3d 977 (9th Cir. 2006)

Rapanos v. United States, 547 U.S. 715 (2006)

Rueth v. EPA, 13 F.3d 227 (7th Cir. 1993) .

V

TABLE OF AUTHORITIES—Continued

Page

S. Ohio Coal Co. v. Office of Surface Mining,

Reclamation & Enforcement, Dep’t of

Interior, 20 F.3d 1418 (6th Cir. 1994)

Sierra Club v. U.S. Army Corps of Eng ‘Ts,

935 F. Supp. 1556 (S.D. Ala. 1996)

Solid Waste Agency of N. Cook County v. U.S.

Army Corps of Eng'rs, 531 U.S. 159 (2001) ....:

United States v. Ciampitti,

669 F. Supp. 684 (D.N.J. 1987)

United States v. Key West Towers, Inc.,

720 F. Supp. 963 (S.D. Fla. 1989)

United States v. Tallmadge,

829 F.2d 767 (9th Cir. 1987)...

Statutes

28 U.S.C. § 1254(1)

33 U.S.C. § 1251, et seq.

§ 1311(a)

§ 1319(d)

344(a)

Regulations

§ 320.1(a)(6)

a

TABLE OF AUTHORITIES— Continued

§ 331.9(c)

Federal Register

60 Fed. Reg. 37,280 (July 19, 1995)

65 Fed. Reg. 16,486 (Mar. 28, 2000)

Miscellaneous

Corps’ Jurisdictional Determinations,

available at http://www.usace.army.mil//CECW/

Documents/cecwo/reg/2003webcharts. pdf

(last visited Feb. 6,\2009)

Sutton, lan & Hill, Steven F., Reevaluating

Judicial Review and the Corps’

Jurisdictional Determinations,

22 Nat. Resources & Env't 29 (Sum, 2007)

PETITION FOR WRIT OF CERTIORARI

Petitioner Fairbanks North Star Borough

(Borough) respectfully petitions this Court for a Writ

of Certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

a

vr

OPINIONS BELOW

The panel opinion of the court of appeals is

published at 543 F.3d 586 (9th Cir. 2008) (Appendix

(App.) A). The panel opinion of the court of appeals

denying the Petition for Rehearing En Banc is not

published and is included in Appendix C. The opinion

of the district court granting the motion for judgment

on the pleadings is not published and is included in

Appendix B.

JURISDICTION

On May 18, 2007, the district court dismissed the

Borough's complaint, holding that it lacked jurisdiction

to review the Borough's challenge to a Jurisdictional

Determination issued to the Borough by Respondent

Inited States Army Corps of Engineers under the

Clean Water Act, 33 U.S.C. § 1251, et seq. on

September 12, 2008, the Ninth Circuit Court of

Appeals affirmed the judgment of the district court

That court denied the Borough's Petition for Rehearing

en Banc on November 20, 2008. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

————————— ———<<— ee

STATUTORY AND

REGULATORY PROVISIONS AT ISSUE

The Clean Water Act (CWA) provides in pertinent

part:

Except 4s in compliance with this section

and section{] ... 1344 of this title, the

discharge of any pollutant by any person

shall be unlawful.

33 U.S.C. § 1311(a) (CWA § 301(a)).

‘The Secretary may issue permits, after

notice and opportunity for public hearings for

the discharge of dredged or fill material into

the navigable waters at specified disposal

sites.

w.C. § 1344(a) (CWA $ 404(a)).

The Administrative Procedure Act (APA) provides

in pertinent part:

Agency action made reviewable by statute

and final agency action for which there is

no other adequate remedy in a court are

subject to judicial review.

5 U.S.C. § 704.

The is's administrative regulations pertaining

to JDs pr in pertinent part:

The Corps has authorized its. district

engineers to issue formal determinations

concerning the applicability ot the Clean

Water Act or the Rivers and Harbors Act ot

L8YY to activities or tracts of land and the

appheability of general permits or statutory

exemptions to proposed activities. A

determination pursuant to this authorization

shall constitute a Corps final agency action

33 C.F.R. § 320.1f(a)(6).

The terms and definitions contained in 33

CFR Parts 320 through 330 are applicable to

this part. In addition, the following terms

are defined for the purposes of this part:

Approved jurisdictional determination

means a Corps document stating the

presence or absence of waters of the United

States on a parcel ora written statement and

map identifying the lhmits of waters of the

United States on a parcel. Approved JDs are

clearly designated appealable actions and

wil] include a basis of JD with the document.

Basis of Jurisdictional Determination is

a summary of the indicators that support the

Corps approved JD. Indicators supporting

the Corps approved JD can include, but are

not limited to: indicators of wetland

hydrology, hydric soils, and hydrophytic

plant communities: indicators of ordinary

high water marks, high tide lines, or mean

high water marks; indicators of adjacency to

navigable or interstate waters; indicators

that the wetland or waterbody is... part of

a tributary system; or indicators of linkages

between isolated water bodies and interstate

or foreign commerce.

Jurisdictional determination (JD) means

a written Corps determination that a

wetland and/or waterbody is subject to

regulatory jurisdiction under Section 404 of

the Clean Water Act (33 U.S.C. 1344) or a

written determination that a waterbody is

subject to regulatory jurisdiction under

Section 9 or 10 of the Rivers and Harbors Act

of 1899 (33 U.S.C. 401 et seq.). Additionally,

the term includes a written reverification of

expired JDs and a written reverification of

JDs where new information has become

available that may affect the previously

written determination. For example, such

geographic JDs may include, but are not

limited to, one or more of the following

determinations: the presence or absence of

wetlands; the location(s) of the wetland

boundary, ordinary high water mark, mean

high water mark, and/or high tide line;

interstate commerce nexus for isolated

waters; and adjacency of wetlands to other

waters of the United States. All JDs will be

in writing and will be identified as either

preliminary or approved. JDs do not include

determinations that a particular activity

requires a DA permit

LF. & 331.2

General. The administrative appeal process

for approved JDs, permit denials, and

declined permits is a one level appeal,

normally to the division engineer The

appeal process will normally be conducted by

the [Review Officer (RO)} The RO will

document the appeal process, and assist the

division engineer in making a decision on the

merits of the appeal. The division engineer

may participate in the appeal process as the

division engineer deems appropriate. The

division engineer will make the decision on

the merits of the appeal, and provide any

instructions, as appropniate, to the district

engineer.

33 C.F.R. § 331.7(a).

The final decision of the division engineer on

the merits oi the appeal will conclude the

administrative appeal process, and this

decision will be filed in the administrative

record for the project.

33 C.F.R. § 331.9(e).

”

_

INTRODUCTION

This case concerns the exceptionally important

matter of the meaning of “final agency action” under

the APA, and the meaning of this Court’s decision in

Bennett v. Spear, 520 U.S. 154 (1997). Specifically, can

a landowner seek judicial review of a formal agency

decision that authoritatively determines that the

landowner’s property is subject to the strictures of the

CWA er must the landowner wait until some

undefined point in the future to obtain judicial review

of that agency decision. The regulations of the United

States Army Corps of Engineers provide landowners

with an administrative process whereby the Corps will

determine uf their property is subject to the CWA. This

process, used by thousands of landowners across the

6

country every year, produces what is called a

“Jurisdictional Determination.” A Jurisdictional

Determination finding jurisdiction puts the landowner

on notice that, prior to commencing any earthmoving

or fill activity, the landowner must first obtain a

permit from the Corps.

Here, the Borough, wishing to build playgrounds

and an athletic field, requested a Jurisdictional

Determination from the Corps. The agency responded

with a Jurisdictional Determination finding that the

site of the proposed development contained regulable

wetlands under the CWA. The Borough disagreed with

the Corps’s analysis and filed suit under the APA to

challenge the Jurisdictional Determination. The

district court dismissed the Borough’s complaint. The

Ninth Circuit affirmed, concluding that the

Jurisdictional Determination does not constitute final

agency action because it does not change the legal

rights or obligations of a party.

The Ninth Circuit's finality analysis is seriously

flawed, and has the immediate result of forcing

landowners throughout the West to endure the heavy

burden of the CWA permitting process, even where

ultimately the Corps may have no jurisdiction. The

Ninth Cuircuit’s decision creates this regulatory

nightmare unnecessarily: a Jurisdictional

Determination does constitute final agency action

because it does change the rights and obligations of the

party, most importantly by affording a landowner with

an estoppel defense to avoid legal hability in any

subsequent enforcement action. The Ninth Circuit's

decision also conflicts with the line of cases following

Leedom v, Kyne, 358 U.S. 184 (1958), which holds that

7

judicial review is always immediately available to

prevent gross abuses of agency power.

For these reasons, more fully set forth below, the

Borough respectfully requests that this Court grant the

Petition for Writ of Certiorari.

STATEMENT OF THE CASE

The Fairbanks North Star Borough, a political

subdivision of the State of Alaska, holds title to

approximately 115,000 acres of land, some of which it

develops, markets, and sells. The property at issue in

this case comprises 2.1 acres which the Borough

wishes to develop into playgrounds, athletic fields,

restrooms, concessions, and related structures. On

October 26, 2005, the Borough requested a

Jurisdictional Determination from the Corps.

Administrative Record (Admin. R.) at 68. On

November 3, 2005, the Corps issued a positive

preliminary Jurisdictional Determination. Z/d. at 62.

The Borough subsequently requested a final

determination. /d. at 60. On December 13, 2005, the

Corps issued a_ positive final Jurisdictional

Determination, finding that the Borough's entire parcel

contains waters of the United States. See id. at 51.

The appeal held that, notwithstanding the presence of

permatrost on the Borough’s property (ineaning that

the ground is frozen for most days of the vear), the

property contains regulable wetlands. On February 8,

2006, the Borough filed an administrative appeal,

contending that the Jurisdictional Determination was

inconsistent with the 1987 Wetlands Manual. See id.

at 11. On May 26, 2006, the Corps’s then-appellate

officer, Brigadier General John W. Peabody, denied the

appeal and upheld the Corps’s final Jurisdictional

Determination finding jurisdiction. /d. at 4.

8

The Borough then filed a complaint in the District

of Alaska under the APA, seeking declaratory and

injunctive relief. The Borough’s principal claim was

that the Corps had used an incorrect standard for

determining whether the Borough’s property contained

jurisdictional wetlands. Specifically, the Borough

contended that the Corps had used a metric for

establishing the Fairbanks-area wetlands growing

season that 1s inappropriate for extremely cold

climates. Moreover, the Borough contended that the

growing season standard used by the Corps for the

Borough’s Jurisdictional Determination conflicted with

the Corps’s authoritative 1987 Wetlands Manual.’

The District Court Decision

Ruling on the Corps’s motion for judgment on the

pleadings under Rule 12(c) of the Federal Rules of Civil

Procedure, the district court held that it lacked

jurisdiction to review the Jurisdictional Determination.

Specifically, the court held that (1) the Jurisdictional

Determination did not constitute final agency

action under the APA, App. at B-6, (2) the CWA

affirmatively precluded review of the Jurisdictional

Determination, id. at B-6-B-7, and (3) the

Jurisdictional Determination was not ripe for review,

id. at B-7—B-8.

The Borough did not object to the entry of judgment on its

Second Claim for Relhef, which contended that the Corps’s

promulgation of the “Alaska Rule” (Special Pubhic Norice 2003-05),

a specialized rule applicable only to Alaska tor identifying

wetlands, was illegal because it had not been subjected to the

APA’s notice-and-comment procedures. The Borough conceded

that the Corps’s revocation of the Alaska Rule mooted that claim.

See App. at B-3n.4

8)

The Ninth Circuit’s Decision

The Borough appealed the dismissa! to the Ninth

Circuit, which affirmed, reaching only the issue of final

agency action. Although agreeing with the Borough

that, under this Court’s Bennett decision, the

Jurisdictional Determination represents’ the

consummation of the Corps’s decisionmaking process

with respect to CWA jurisdiction over the Borough's

property, the Ninth Circuit found that review must be

withheld, because the Jurisdictional Determination

purportedly does not affect the Borough’s nmghts or

obligations. See Fairbanks N. Star Borough, 543 F.3d

at 593 (App. at A-12). In reaching this conclusion, the

court reasoned that any legal obligation attaching to

the Borough derives from the CWA, not from the

Jurisdictional Determination, and that the Borough is

not denied judicial review entirely, because it can raise

the jurisdictional issue in a permit contest or

enforcement proceeding. See id. at 593-95 (App. at A-

12—A-15).

The Ninth Circuit rejected each of the Borough’s

arguments as to why the Jurisdictional Determination

affects the Borough’s rights and obligations. The court

dismissed the Borough’s argument that the

Jurisdictional Determination may serve as the basis

for an augmented penalty in a future enforcement

proceeding, on the grounds that the “jursdictienal

determination has no more legal effect on Fairbanks’

ability eventually to assert a good faith defense than

would, for example, a report by a private wetlands

consultant informing Fairbanks that its property

contained wetlands.” Jd. at 595 (App. at A-17). The

court rejected the Borough's contention that the

Jurisdictional Determination requires the Borough to

10

seek a CWA permit (which it otherwise would not

apply for), on the grounds that “Fairbanks’ legal

obligations—including any obligation to pursue a

Section 404 dredge and fill material discharge

permit—have always arisen solely on account of the

CWA,” not from the Jurisdictional Determination. Id.

at 596 (App. at A-18). Lastly, the court found no merit

to the Borough’s argument that, had the Corps issued

a Jurisdictional Determination finding no CWA

jurisdiction, the Jurisdictional Determination would

have provided the Borough with a good estoppel

defense in a future enforcement action. Although such

a Jurisdictional Determination would have legal

consequences, see id. at 596 n.12 (App. at A-18—-A-19),

the court reasoned that, because the Borough’s

Jurisdictional Determination found jurisdiction, and

thus the Borough would have no need or opportunity to

present an estoppel defense, the Borough's

Jurisdictional Determination does not have legal

consequences.

REASONS FOR GRANTING THE WRIT

I

THIS CCURT SHOULD GRANT

THE PETITION TO SETTLE AN

IMPORTANT QUESTION OF LAW,

NAMELY, WHETHER A LANDOWNER

MAY SEEK JUDICIAL REVIEW OF A

JURISDICTIONAL DETERMINATION

The Ninth Circuit’s decision forces landowners

throughout the western United States who believe tha.

their property is not subject to the CWA

(notwithstanding a Jurisdictional Determination to

the contrary) into a dilemma: (1) abandon their

11

development plans; (2) agree to participate in the CWA

permitting process, a process that even the panel

decision conceded to be arduous and expensive,

Fairbanks N. Star Borough, 543 F.3d at 596 n.11 (App.

at A-17); or (8) proceed in spite of the Jurisdictional

Determination, and incur the risk of significant

penalties (without appealing the determination). The

Ninth Circuit’s conclusion that a Jurisdictional

Determination does not have legal consequences, see

id. at 593 (App. at A-12), raises an exceptionally

important issue of law having far-reaching effect on

land use and development throughout the western

United States. Moreover, its conclusion conflicts with

the settled rule that permit decisions are judicially

reviewable.

The Ninth Circuit acknowledged that a

Jurisdictional Determination finding no jurisdiction

may well have legal consequences, yet strangely

concluded that a Jurisdictional Determination finding

jurisdiction does not. See id. at 596-97 (App. at A-

18—-A-19). But if (1) a landowner is entitled under law

to a Jurisdictional Determination finding no

jurisdiction (because his property does not contain

jurisdictional wetlands), and (2) the Corps wrongfully

issues a Jurisdictional Determination finding

jurisdiction, then (3) the landowner should have an

opportunity to contest the Corps’s determination in

court. Cf. Chicago & S. Air Lines v. Waterman S.S.

Corp., 333 U.S. 108, 112-13 (1948) (“[Aldmunistrative

orders are not reviewable unless and until they impose

an obligation, deny a right or fix some legal

relationship as a consummation of the administrative

process.’) (emphasis added)

12

If the Ninth Circuit’s reasoning were applied toa

CWA permit denial, then such a deniai would not

be judicially reviewable. Yet a permit denial its

reviewable precisely because, if the permit is granted,

then the landowner has a legal right to fill wetlands

free from liability. As shown below, neither the Corps

nor the courts hold that CWA permit denials are

beyond judicial review. So it should be with

Jurisdictional Determinations. See Ian Sutton &

Steven F. Hill, Reevaluating Judicial Review and the

Corps’ Jurisdictional Determinations, 22 Nat.

Resources & Env’t 29 (Sum. 2007).

The Jurisdictional Determination process is

critically important for the regulated public. As of

2003 (the most recent year for which statistics

are available), the Corps processed over

74,000 Jurisdictional Determinations.” But the

process's value is substantially undercut if landowners

cannot seek judicial review of Jurisdictional

Determinations. Perhaps for that reason, the Corps, in

promulgating regulations governing the Jurisdictional

Determination administrative appeal process, “decided

not to address... when aJD should be considered a

final agency action.” 65 Fed. Reg. 16,486, 16,488

(Mar. 28, 2000). If the Corps will not speak, this Court

should. The Ninth Circuit's decision to withhold

judicial review converts the Jurisdictional

Determination process into a grand waste of time,

money, and effort. Review in this Court is merited to

decide the important question of rewiewability of

Jurisdictional Determinations.

See http://www usace army mil/CRECW/Documents/cecwo/re g/

2Z003webcharts.pdtf (last visited Feb. 6, 2009).

13

A. Legal Consequences Flow from

a Jurisdictional Determination

An agency action is final if it marks the

consummation of the decisionmaking process and

either determines rights or obligations, or 1s such that

legal consequences flow from it. Bennett, 520 U.S. at

177-78. A Jurisdictional Determination both marks

the culmination of the Corps’s decisionmaking process

regarding its CWA authority, and produces legal

consequences. Whether a jurisdictional determination

meets the second Bennett requirement for APA finality

is an important question that can only be resolved by

this Court.

Contrary to the decision below, this Court should

grant certiorari to hold that the legal consequences

prong is met because the Jurisdictional Determination

process affords legal immunity to landowners through

an estoppel defense. See United States v. Tallmadge,

829 F.2d 767, 773 (9th Cir. .987) (noting that an

estoppel defense “apphes when an official tells the

defendant that certain conduct is legal and the

defendant believes the official”) (internal quotation

marks omitted). Cf. Gen. Elec. Co. v. EPA, 290 F.3d

377, 383 (D.C. Cir. 2002) (‘In some circumstances, if

the language of the document is such that private

parties can rely on it as a norm or safe harbor by which

to shape their actions, it can be binding as a practical

matter.’) (emphasis added; internal quotation marks

omitted).

Moreover, this Court should clarify that a

Jurisdictional Determination directly and immediately

alters a landowner’s course of conduct, because it

represents the authoritative determination of the

responsible agency that the landowner is subject to

14

CWA strictures and thus must seek a permit to

continue with his project.” See 60 Fed. Reg.

37,280, 37,282 (July 19, 1995) (“[A] jurisdictional

determination .. . establishes whether a particular

area is subject to regulatory authority under section

404 of the Clean Water Act... .”). Cf. Or. Natural

Desert Ass’n v. U.S. Forest Serv., 465 F.3d 977, 987 (9th

Cir. 2006) (“[A]n agency action may be final if it has a

direct and immediate ... effect on the day-to-day

business of the subject party.”) Gnternal quotation

marks omitted).

Finally, this Court should resolve this issue

because an unreviewed, positive Jurisdictional]

Determination substantially increases the likelihood

that any civil fine assessed against the landowner will

be greater than otherwise would be the case. See 32

U.S.C. § 1319(d) (noting “good faith” as one of the

factors). Cf. United States v. Key West Towers, Inc..,

720 F. Supp. 963, 965-66 (S.D. Fla. 1989) (filling of

wetlands in violation of Corps’s cease-and-desist letter

justifies substantial civil penalty); Hanson v. United

States, 710 F. Supp. 1105, 1109 (E.D. Tex. 1989)

(upholding substantial administrative penalty owing in

part to violation of three cease-and-desist orders);

The CWA permitting process can be long and arduous. See

Rapanos v. United States, 547 U.S. 715. 721 (2006) (plurality

opimon) (The average applhicant for an individual permit spends

788 davs and $271,596 1n completing the process, and the average

appheant for a nationwide permit spends 313 days and

$28,915—not counting costs of mitigation or design changes

Sunding & Zilberman, The Economics of Envtronmental

Regulation bv Licensing: An Assessment of Recent Changes to the

N

Wetland Permitting Process, 42 Natural Resources -]. 59, 74-76

4

(2002)."); Farrbanks N. Star Borough, 543 F.3d at 596 n.11 (App

Lv) (We appreciate that navi he CWA permitting

is no small task.”)

1d

United States v. Ciampittt, 669 F. Supp. 684, 699

(D.N.J. 1987) (substantial civil penalty justified based

upon defendant’s knowing disregard of CWA). Cf. 33

U.S.C. § 13819(d) (authorizing civil penalties of $25,000

per day per violation).

B. The Ninth Circuit’s Decision Conflicts

with the Settled Rule That Agency

Decisions on Permit Applications Are

Subject to Judicial Review

The Ninth Circuit agreed with the Korough that

one outcome of the Jurisdictional Determination

process—namely, a Jurisdictional Determination

finding no jurisdiction—would likely be reviewable

because it would provide the landowner with an

estoppel defense in a subsequent enforcement action.

Fairbanks may be correct that an official

Corps statement that a property is not a

jurisdictional wetland subject to the CWA’s

permitting requirements could be the basis

for an estoppel defense. When an authorized

government official tells the defendant that

a course of action is legal and the defendant

reasonably relies to its detriment on that

erroneous representation, then fairness and

due process may prohibit the state from

punishing the defendant for that unlawful

conduct Courts have recognized that

finality can result if the language of the

document is such that private parties can

rely on it as a safe harbor by which to shape

their actions

Fairbanks N. Star Borough, 543 F 3d at 596 n.12 (App.

at A-18—-A-19) (citations, quotation marks, and ellipses

16

omitted). Yet in a wholly inconsistent application of

the law, the Ninth Circuit labeled as a “non sequitur”

the Borough’s assertion that a_ Jurisdictional

Determination finding jurisdiction is also judicially

reviewable, reasoning that the assertion was based on

“the dubious premise that if an agency's

decisionmaking process has multiple outcomes and any

of these outcomes is judicially reviewable, then all of

them must be judicially reviewable.” See id. at 596-97

(App. at A-19).

On this point, the holding of the lower court's

decision conflicts with the settled rule that CWA

permit decisions are judicially reviewable. For the

Ninth Circuit’s decision takes no account of the nearly

perfect analogy between Jurisdictional Determinations

and Corps permit decisions, which are judicially

reviewable regardless of their outcome. See, e.g., Nat

Ass'n of Home Builders v. U.S. Army Corps of Engrs,

417 F.3d 1272 (D.C. Cir. 2005) (issuance of CWA

nationwide permits subject to judicial review);

Michigan Peat, a Div. of Bay-Houston Towing Co. v.

EPA, 175 F.3d 422 (6th Cir. 1999) (permit grant

subject to judicial review); Child v. United States, 851

F. Supp. 1527, 1533 n.11 (D. Utah 1994) (permit denial

subject to judicial review); Sierra Club v. U.S. Army

Corps of Eng’rs, 9385 F. Supp. 1556, 1565 n.10 (S.D.

Ala. 1996) (permit grant subject to judicial review).

The Corps below advanced the position that permit

decisions are reviewable, see Corps Answering Brief at

14 ("[The Borough] can apply to the Corps for a permit

under Section 404. If its application is denied, the

Borough can appeal administratively and then seek

judicial review under the APA.”), as did the Ninth

Circuit's decision. See Fairbanks N. Star Borough, 543

F.3d at 594-95 (App. at A-14—A-15) (It is settled law

17

that the federal courts have the final say on the scope

of the CWA. In exercising that authority, we would not

give the government’s position that CWA regulatory

jurisdiction exists any particular deference simply

because the Corps’ views on the matter were

formulated in the context of an approved jurisdictional

determination rather than, for example, a permit

application or enforcement proceeding.”) (footnote

omitted).

Just as a disappointed permittee can challenge in

court the Corps’s denial of his permit application, so

too should the Jurisdictional Determination applicant

be able to challenge in court the Corps’s decision that

his property is subject to the CWA. In the former

instance, the permit denial precludes the landowner

from legally discharging dredge-and-fill material into

the waters of the United States, yet the legal rights

and obligations of the landowner remain the same

after the permit denial as before the permit was

applied for. Nevertheless, both the Corps and the

courts acknowledge that a permit denial is judicially

reviewable. In the latter instance, the Jurisdictional

Determination finding jurisdiction precludes the

landowner from using the Jurisdictional

Determination as the basis for an estoppel defense and

proceeding with his development project without

having to obtain a CWA permit. Just as in the permit

context, where the particular outcome of the permit

proceeding—grant or denial—does not affect whether

that outcome is judicially reviewable, the same ought

to be true with Jurisdictional Determinations.

The essential point is this: if an administrative

proceeding 1s capable of producing an outcome that

would constitute final agency action, and if a

18

participant in the concluded proceeding contends that,

under the law, he has a legal right to a particular

outcome that would constitute a final agency action,

then the agency's denial of that outcome is itself a final!

agency action susceptible to judicial review. The logic

of a contrary position would render every permit

denial, in every circumstance, unreviewable. That has

never been the law. See, ¢c.g., Child, 851 F. Supp. at

1533 n.11:; Leslie Salt Co. v. United States, 789 F.

Supp. 1030, 1033 (N.D. Cal. 1991) (decision on permit

application constitutes final agency action).

The Ninth Circuit’s adoption of the contrary

position therefore raises an issue of exceptional

importance meriting the review of this Court

THIS COURT SHOULD GRANT

THE PETITION BECAUSE THE

DECISION CONFLICTS WITH

LEEDOM v. KYNE AND DECISIONS

OF OTHER COURTS OF APPEALS

The Borough argued below that, even if a

Jurisdictional Determination would normally not be

subject to judicial remmew., any such bar should be

removed given the magnitude of regulatory overreach

produced by the Corps's theory justifving regulation of

the Borough's property. The Ninth Circuit rejected

sub silentio the argument In doing so, the lower

court's ruling conflicts with this Court's decision in

Leedom v. Kyne, 358 U.S. 184, as well as the decisions

of the courts of appeals in Rueth v. EPA, 13 F.3d 227

( ith (ir 19933). and Southe rn Ohio ( ‘oal C’o. uv Chr C OF

Surface Mining, Reclamation and Enforcement

Department of Interior, 20 F.3d 1418 (6th Cir. 1994)

LY

Leedom requires that federal courts hear

cnallenges to an agency's jurisdiction when judicial

review is necessary to protect a right conferred by

Congress. See 358 U.S. at 191. The case concerned the

National Labor Relations Roard’s decision to include

professional with nonprofessional workers into one

collective bargaining unit without allowing the

professional] workers to vote upon the action, as

required by Section 9(b)(1) of the National Labor

Relations Act. The Supreme Court had previously held

that Board orders do not constitute “final agency

action,” and that the legality of Board orders can

only be reviewed through the Act’s’' express

provision-——Section 10(c)—for challenging or reviewing

enforcement orders or unfair labor practices. See id. at

L187. Nevertheless, Leedom determined that the

Board's action was immediately reviewable

Plainly, this was an attempted exercise of

power that had been specifically withheld, It

deprived the professional employees of a

“night assured to them by Congress. Surely.

in these circumstances, a Federal District

Court has jurisdiction of an original suit to

prevent deprivation of a right so given

Id. at 189. The Court reasoned that in

circumstances the inference would he strong

Congress intended the “general jurisdiction of [the

federal] courts to control ”" Td. at 190

The Corpss action in this case also merits review

under the Leedom doctrine he Leedom doctrine

permits the exerciss of general ftederal

jurisdiction—here unuer the APA——-to allow judicial

revicw of agency action that implicates the

fundamental nght to use and enjov property. As noted

20

above, see, supra, at 7-8, the Corps’s theory for

jurisdiction over the Borough's’ property—that

permafrost can constitute regulable wetlands—would

justify federal regulatory control over much private

property in Alaska. Both the Seventh and Sixth

Circuits have recognized the applicability of the

Leedom doctrine in precisely this context of “fa]

complete|] overexten[sion of] the[ agency’s] authority.”

Rueth, 13 F.3d at 231. See S. Ohio Coal Co., 20 F.3d at

1427.

For example, in ARueth, the Seventh Circuit

declined to review a CWA compliance order asserting

jurisdiction over the plaintiffs wetlands because the

CWA, as then interpreted, extended CWA authority to

all wetlands with even the most tenuous of connections

to interstate waters. See Rueth, 18 F.3d at 231. But

that rationale can no longer stand given the significant

narrowing of the Corps’s authority following

subsequent decisions of this Court. See Solid Waste

Agency of N. Cook County v. U.S. Army Corps of Engrs,

531 U.S. 159 (2001) (rejecting migratory bird rule);

Rapanos v. United States, 547 U.S. 715 (2006)

(rejecting hydrological connection rule) Similarly

here, the Corps’s assertion that permafrost can

constitute regulable wetlanas constitutes such a

marked expansion of CWA authority as to justify this

Courts review of the Jurisdictional Determination

under Rueth and Leedom

Thus, the Ninth Circuits SUO0O stlentio

determination that the Leedom doctrine does not apply

therefore creates a conflict with the case law of this

Court and of other courts of appeals, meriting

certiorarl.

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

DATED: February, 2009.

Respectfully submitted,

JOSEPH W. MILLER JAMES S. BURLING

Fairbanks North Star ‘DAMIEN M. SCHIFF

Borough Counsel of Record

P.O. Box 71267 Pacific Legal Foundation

Fairbanks, Alaska 99707 3900 Lennane Drive,

Telephone: (907) 459-1318 Suite 200

Facsimile: (907) 459-1155 Sacramento, California 95834

Telephone: (916) 419-7111

Facsimile: (916) 419-7747

Counsel for Petitioner

Appendix A-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FAIRBANKS NORTH STAR No. 07-35545

BOROUGH, li

D.C. No.

CV-6-0026-F-

RRB

Plaintiff-Appellant,

a ' Elo : OPINION

U.S. ARMY CORPS OF ENGINEERS:

JOHN W. PEABODY: KEVIN J.

WILSON,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Alaska

Ralph R. Beistline, District Judge, Presiding

Argued and Submitted

August 4, 2008—-Anchorage, Alaska

filed September 12, 2008

Before: Dorothy W. Nelson, A. Wallace Tashima and

Raymond C. Fisher, Circurt Judges.

Opinion by Judge Fisher

Appendix A-2

COUNSEL

Joseph W. Miller, Fairbanks North Star Borough,

Fairbanks, Alaska; James S. Burling and Damien M.

Schiff (argued), Pacific Legal Foundation, Sacramento,

California, for the plaintiff-appellant.

Ronald J. Tenpas, Acting Assistant Attorney General,

Steven E. Rusak, Ellen J. Durkee, Aaron P. Avila and

Robert H. Oakley (argued), Attorneys, United States

Department of Justice, Environmental and Natural

Resources Division, Washington, DC; Toni B. London,

United States Army Corps of Engineers, Office of

Counsel, for the defendants-appellees.

OPINION

FISHER, Circuit Judge:

The Clean Water Act (“CWA”) makes it unlawful

to discharge dredged and fill material into the waters

of the United States except in accord with a permitting

regime jointly administered by the Army Corps of

Engineers (“Corps”) andthe Environmental Protection

Agency (“EPA”). See United States v. Riverside

Bayview Homes, Inc., 474 U.S. 121, 123 (19835).

Fairbanks North Star Borough (“Fairbanks”) seeks

judicial review of a Corps’ “approved jurisdictional

determination,” which is a written, formal statement

of the agency's view that Fairbanks’ property contained

waters of the United States and would be subject to

regulation under the CWA. We have jurisdiction under

28 U.S.C. § 1291, and we affirm the district court's

dismissal on the pleadings for lack of jurisdiction. The

Corps’ approved jurisdictional determination is not

Appendix A-—3

final agency action within the meaning of the

Administrative Procedure Act (“APA”), 5 U.S.C. § 704.

BACKGROUND’

“The burden of federal regulation on those who

would deposit fill material in locations denominated

‘waters of the United States’ is not trivial.” Rapanos v.

United States, 547 U.S. 715, 721 (2006) (plurality

opinion). Under the CWA, “any discharge of dredged

or fill materials into... ‘waters of the United States’| |

is forbidden unless authorized by a permit issued by

the Corps of Engineers pursuant to” Section 404 of the

CWA, which is codified at 33 U.S.C. § 1344. Leslie Salt

Co. v. United States, 55 F.3d 1388, 1391 (9th Cir.

1995): see also Riverside Bayview, 474 U.S. at 123; Se.

Alaska Conservation Council v. U.S. Army Corps of

Engrs, 486 F.3d 638, 646 (9th Cir. 2007). “The Corps

has issued regulations defining the term ‘waters of the

United States,” Solid Waste Agency of N. Cook County

v. U.S. Army Corps of Engrs, 531 U.S. 159, 163 (2001),

to include most wetlands adjacent to waters of the

United States that are not themselves wetlands, see 33

C.F.R. § 328.3€a)(7).

Fairbanks wishes to develop a 2.1 acre tract of

property for its residents’ recreational use. It intends

to build “playgrounds, athletic fields, concession

stands, restrooms, storage buildings, road[s], and

parking lots,” the construction of which will “include

the placement of fill material.” In October 2005,

On review of a judgment on the pleadings, we “accept all

matenal allegations in the complaint as true and construe them

in the light most favorable to [the non-moving party].”” Turner t

Cook, 362 F.3d 1219, 1225 (9th Cir. 2004) (internal quotation

marks omitted and alterations in original)

Appendix A—4

Fairbanks wrote to the Corps to “ask[ ] for [its] review

and determination” that it could place fill material on

its property without further ado. It asked the Corps to

“provide a detailed, scaled drawing showing the...

wetlands in relation to the lot boundaries.” The Corps

thereafter issued a “preliminary” jurisdictional

determination finding that Fairbanks’ entire parcel

contained wetlands. Fairbanks then requested that

the Corps provide an “approved” jurisdictional

determination. In December 2005, the Corps obliged

Fairbanks and replied:

Based on our review of the information you

furnished and available to our office, we have

determined that the entire parcel described

above contains waters of the United States

under our regulatory jurisdiction

This approved jurisdictional determination is

valid for a period of five (5) years ... unless

new information supporting a revision 1S

provided to this office ....

The Corps’ letter went on to remind Fairbanks that

“Section 404 of the Clean Water Act requires that a| |

permit be obtained for the placement or discharge of

dredged and/or fill materia] into waters of the U.S.,,

including wetlands, prior to conducting the work.”

Fairbanks took a timely administrative appeal of the

approved jurisdictional determination, which the Corps

found to be without merit in May 2006. Fairbanks has

not since applied for a Section 404 permit. Nor has the

Corps initiated any pre-enforcement or enforcement

action.

In August 2006, Fairbanks brought this suit to set

aside the Corps’ approved jurisdictional determination.

According to Fairbanks. the Corps acted unlawfully in

Appendix A—5

asserting that its property was subject to CWA

regulatory jurisdiction. Fairbanks contended that its

property could not possibly be a wetland because it is

“underlain by shallow permafrost at a depth of 20

inches” that does not “exceed zero degrees Celsius at

any point during the calendar year.” A Corps

regulation, which is not challenged here, provides that:

The term wetlands means those areas that

are inundated or saturated by surface or

ground water at a frequency and duration

sufficient to support, and that under normal

circumstances do support, a prevalence of

vegetation typically adapted for life in

saturated soil conditions.

33 C.F.R. § 328.3(b). To identify wetlands under this

regulation, the Corps uses its 1987 Wetlands

Delineation Manual (“Manual”). See Energy and

Water Development Appropriations Act, Pub. L. No.

102-377, 106 Stat. 1315, 1324 (1992): United States v.

Deaton, 332 F.3d 698, 712 (4th Cir. 2003).

The Manual explains that wetlands have the three

“general diagnostic environmental characteristics” of

vegetation, soil and hydrology. Manual { 26(b).

Generally, “evidence of a minimum of one positive

wetland indicator from each parameter (hydrology,

soil, and vegetation) must be found in order to make

a positive wetland determination.” Id. § 26(c).

Fairbanks alleged that its property lacks wetlands

hydrology, because it is not “periodically inundated”

and does not have “saturated soils during the growing

season.” TJId. © 46. The Manual defines “growing

season’ as “[t]he portion of the vear when_ soil

temperatures at 19.7 in. below the soil surface are

higher than biologic zero (5° C)” and notes that “[flor

Appendix A-6

ease of determination this period can be approximated

by the number of frost-free days.” /d. at App. A.

Fairbanks asserted that the Corps’ jurisdictional

determination improperly relied on a special definition

of “growing season,’ which Fairbanks calls the “Alaska

Rule.” inconsistent with the Manual’s definition. The

Alaska Rule states that the frost-free period based on

a “28 degree air temperature” best fits the “observed

growing season in most parts of [Alaska].” See Army

Corps of Engineers, Alaska District, Special Public

Notice 03-05 (July 25, 2003). By using the Alaska

Rule, Fairbanks claimed, the Corps could establish a

growing season even when a property ts underlain by

shallow permafrost, and never has a subsurface soil

temperature higher than biologic zero.* Consequently,

the Corps’ finding that Fairbanks’ property was a

wetland subject to CWA regulatory jurisdiction was

erroneous.

The district court granted the Corps’ motion for

judgment on the pleadings, concluding that the

approved jurisdictional determination did _ not

constitute final agency action under the APA, that

Fairbanks’ challenge was unripe and that the CWA

statutorily precluded judicial review. Fairbanks timely

appealed.

STANDARD OF REVIEW

“We review a judgment dismissing a case on the

pleadings de novo.” Dunlap v. Credit Prot. Ass'n, L.P.,

~

419 F.8d 1011, 1012 n.1 (9th Cir. 2005) (per curiam).

Fairbanks concedes that the Corps’ rescission of the Alaska

Rule in March 2006 moots its claim that the Alaska Rule

was promulgated without compliance with the APA's

notice-and-comment procedures and does not challenge the district

court's entry of judement as to that claim.

Appendix A—7

“A judgment on the pleadings is properly granted

when, taking all the allegations in the pleadings as

true, the moving party is entitled to judgment as a

matter of law.” Jd. (internal quotation marks omitted).

“We review de novo the district court’s determination

that it lacked subject matter jurisdiction. We therefore

do not defer to the agency’s position on whether agency

action is final.” Or. Natural Desert Ass’n v. U.S. Forest

Serv., 465 F.3d 977, 979 n.1 (9th Cir. 2006) (internal

citations omitted).

DISCUSSION

[1] Asa matter of first impression, we hold that

the Corps’ issuance of an approved jurisdictional

determination finding that Fairbanks’ property

contained waters of the United States did not

constitute final agency action under the APA for

purposes of judicial review.” “As a general matter, two

conditions must be satisfied for agency action to be

final: First, the action must mark the consummation

of the agency’s decisionmaking process—it must not be

of a merely tentative or interlocutory nature. And

second, the action must be one by which rights or

obligations have been determined, or from which legal

consequences will flow.” Bennett v. Spear, 520 U.S.

154, 177-78 (1997) (internal citations and quotation

marks omitted). The approved jurisdictional

determination represented the Corps’ definitive

This question has not been addressed by any published decision

of the courts of appeals. See Greater Gulfport Prop., LLC v. U.S

Army Corps of Engrs, 194 F. App’x 250 (5th Cir. 2006)

(unpublished) (holding that district court lacked jurisdiction to

t J

review Corps’ approved jurisdictional determination); Comms of

Pub. Works v. United States, 30 F.3d 1

unp iblished) (same)

Appendix A—8

administrative position that Fairbanks’ property

contained wetlands. But, as we shall explain, it did not

“mpose an obligation, deny a right, or fix some legal

relationship.” Ukiah Valley Med. Ctr. v. FTC, 911

F.2d 261, 264 (9th Cir. 1990) (quoting Chicago & S. Air

Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 1038, 113

(1948)). Because finality is a _ jurisdictional

requirement to obtaining judicial review under the

APA, the district court correctly dismissed Fairbanks’

action. See Or. Naturai Desert Ass’n, 465 F.3d at 982.

We do not reach the issues of ripeness and statutory

preclusion of judicial review.

I.

We agree with Fairbanks that an approved

jurisdictional determination upheld in the Corps’

administrative appeal process “mark[s|_ the

consummation of the agency’s decisionmaking process”

for determining whether the Corps conceives a

property as subject to CWA regulatory jurisdiction.

There is no question that the Corps has asserted its

ultimate administrative position regarding the

presence of wetlands on Fairbanks’ property “on the

factual circumstances upon which the [determination

is] predicated|[.{” See Alaska Dept of Envitl.

Conservation v. EPA, 244 F.3d 748, 750 (9th Cir. 2001)

(‘Alaska I); see also Alaska Dept of Envtl.

Conservation v. EPA, 298 F.3d 814, 818 (9th Cir. 2002),

affd 540 U.S. 461, 483 (2004) (‘Alaska II"). The

approved jurisdictional determination states on its face

that it “1s vahd for a period of five (5) years” and that

the Corps’ position would change only if “new

Appendix A-9

information supporting a revision is provided.” It is

“devoid of any suggestion that it might be subject to

subsequent revision” or “further agency consideration

or possible modification.” See City of San Diego vu

Whitman, 242 F.3d 1097, 1102 (9th Cir. 2001) (quoting

Ontario v. EPA, 912 F.2d 1525, 1532 (D.C. Cir. 1990),

and Ciba-Geigy Corp. v. EPA, 801 F.2d 4380, 436-37

(D.C. Cir. 1986)).

[2] By regulation, the Corps has established a

formal procedure for “[a]ffected part[ies]” to solicit its

official position about the scope of CWA regulatory

jurisdiction. See 33 C.F.R. § 331.2. A jurtsdictional

determination is a “written Corps determination that

a wetland... is subject to regulatory jurisdiction

under [the CWA|].” Id.; see also Jurisdictional

Determinations, Corps Regulatory Guidance Letter

08-02, at 1 (June 26, 2008) (“An approved

[jurisdictional determination] is an official! Corps

determination that jurisdictional [waters under the

CWA] are either present or absent on a particular

site.”), After the district engineer’s approved

jurisdictional determination has, been upheld by the

division engineer, no further administrative appeal is

* Alaska I forecloses the Corps’ contention that an approved

jurisdictional determination cannot satisfy Bennetts first prong

because the Corps might alter its position if the physical condition

of Fairbanks’ property changed. We had no difficulty there

regarding the EPA’s findings as its “last word” about the contested

issue because the agency's position was “unalterable”: it “would

chanyve only if the circumstances surrounding the [generator’s

construction] changed.” Alaska [, 244 F.3d at 750; see also Gen

Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002) (“If the

possibility ... of future revision in fact could make agency action

non-final as a matter of law, then it would be hard to imagine

when any agency rule would ever be final

Appendix A-10

possible. See 33 C.F.R. § 3381.9." At that point, the

approved jurisdictional determination is deemed to be

“final Corps agency action” and a “final Corps decision”

for administrative purposes. Jd. § 320.1(a)(2), (a)(6)

(emphasis added). ‘The regulations thus delimit

the stopping point of the Corps’ decisionmaking

process for the issuance and review of jurisdictional

determinations. An approved jurisdictional

determination upheld on administrative appeal is the

agency’s “last word” on whether it views the property

as a wetland subject to regulation under the CWA. See

Sierra Club v. U.S. NRC, 825 F.2d 1356, 1362 (9th Cir.

'

?

With limited exceptions, the Corps’ district engineers are

authorized to “issue formal determ.nations concerning the

applicability of the Clean Water Act... to... tracts of land.

33 C.F.R. § 320.1(a)(6); but cf. id. § 825.9. The districe ep ginecr’s

jurisdictional determination is subject to administrative appeal.

Id. § 320.1(a)(2). In determining the appeal, the reviewing officer

is to “conduct an independent review of the administrative record

to address the reasons for the appeal cited by” the appellant. [d

§ 331.3(b)(2). The reviewing officer must render a decision within

12 months of the filing of a request for appeal, id. § 331.8,

“document his decision on the merits of the appeal in writing,” 1d

§ 331.9(b), and file it “in the administrative record for the project,

thereby concluding the administrative appeal process, id

§ 331.9(c)

An agency’s characterization of its own action as final 1s not

“determinative” of our own finality analysis under the APA

Blincoe v. FAA, 37 F.3d 462, 464 (9th Cir. 1994) (per curiam),

though it does “provide [ | an indication of the nature of the

lagency's] action,” City of San Diego, 242 F.3d at 1101 n.6. The

Corps has expressly declined to address “in rule-making when

a [jurisdictional determination] should be considered a_ final

agency action” for purposes of judicial review, See Final Rule

Establishing an Administrative Appeal Process for the Regulatory

Program of the Corps of Engineers, 65 Fed, Reg. 16,486, 16,488

(Mar. 28, 2000)

Appendix A-—11]

1987). Nofurther agency decisionmaking on that issue

can be expected, a clear indication that the first prong

of the Bennett finality test is satisfied. See id.

The Corps argues that an approved jurisdictiona!

determination merely helps parties “determine where

they stand on potential permitting issues” and

“necessarily entails the possibility of further

administrative proceedings,” like permit applications.

As such, the determination is “only [a] step | ] leading

to an agency decision, rather than the final action

itself.” See Ecology Ctr., Inc. v. U.S. Forest Serv., 192

F.3d 922, 925 (9th Cir. 1999). Fairbanks correctly

responds that this argument “conflate[s] one

decision with a future yet distinct administrative

process.” The Corps’ regulations throughout treat

jurisdictional determinations and permitting decisions

as discrete agency actions.’ Notably, jurisdictional

determinations “do not include determinations that a

particular activity requires a...permit.” 33 C.F.R.

§ 331.2. The Corps’ reliance on City of San Diego is

misplaced in view of the agency’s provision of a formal

procedure for acquiring its settled views about the

scope of CWA jurisdiction outside of and apart from the

permitting process. CY. City of San Diego, 242 F.3d at

1101 (reasoning that letter did not mark

consummation of decisionmaking process because it

was only “upon completion of the permit) appeal

t.§ 3831.2 Qdentifying approved jurisdictional

determinations, permit denials and declined permits as categories

of “appealable action|s}); td. § 331.8(a)(1) (allowing division

engineer to delegate authority when reviewing jurisdictional

determinations, but not permit decisions); see also Corps

Reyulatory Guidance Letter O8-02, at 2-3 (explaining that

approved jurisdictional determination need not be secured befor:

Initiating: permitting proce

Appendix A-12

process’ that agency would decide applicability of

statute). That Fairbanks might later decide to initiate

some other Corps process after obtaining the approved

jurisdictional determination does not detract from the

definiteness of the determination itself

[3] An approved jurisdictional determination

announces the Corps’ considered, definite and firm

position about the presence of jurisdictional wetlands

on Fairbanks’ property at the time it is rendered.

Accordingly, we conclude that it marks’ the

consummation of the agency’s decisionmaking process

as to that issue.

II.

[4] Although Fairbanks is correct that the first

Bennett requirement is satisfied, the second is not. We

hold that the Corps’ approved jurisdictional

determination finding that Fairbanks’ property

contained wetlands subject to CWA _ regulatory

jurisdiction is not an “action... by which ‘rights or

obligations have been determined, or from which ‘legal

consequences will flow.” Bennett, 520 U.S. at 178; see

also Or. Natural Desert Ass'n, 465 F.3d at 987

(examining “whether [challenged action] has any legal

effect that would qualify it as a final agency action

under Bennett's second finality requirement”). From

this it follows that judicial review under the APA 1s

unavallable.

[5] Fairbanks’ rights and obhgations remain

unchanged by the approved jurisdictional

determination. It does not itself command Fairbanks

to do or forbear from anything: as a bare statement of

the agency's opinion, it can be neither the subject of

immediate compliance” nor of defiance. See FTC

Appendix A-13

Standard Oil Co., 449 U.S. 232, 239-40 (1980). Up to

the present, the Corps has “expresseld] its view of

what the !aw requires” of Fairbanks without altering

or otherwise fixing its legal relationship. See AT & T

v. HREOC, 270 F.3d 973, 975 (D.C. Cir. 2001). This

expression of views lacks the “status of law or

comparable legal force.” See Ukiah Valley Med. Ctr.,

911 F.2d at 264.° In any later enforcement action,

Fairbanks would face liability only for noncompliance

with the CWA’s underlying statutory commands, not

for disagreement with the Corps’ jurisdictional

determination. See 33 U.S.C. § 1319(b)-(c), (g)

(providing criminal, civil and administrative penalties

for violation of the CWA, but not referring to approved

jurisdictional determinations); cf. Tenn. Valley Auth. v.

Whitman, 336 F.3d 1236, 1255-57 (11th Cir. 2003)

(reasoning that Clean Air Act complhiance orders have

status of law because statute “undeniably authorizes[s}

... penalties based solely upon noncompliance” with

them).

{6} At bottom, Fairbanks has an obligation to

comply with the CWA. If its property contains waters

of the United States, then the CWA requires Fairbanks

to obtain a Section 404 discharge permit; if its property

rs nt ——

(f,eg., Alaska IT, 540 US. at 481 1 LOC (T]he stop-construction

order imposed ‘new legal obligations )(emphasis added); Pub

Util. Dist. No. 1 of Snohomish County v. Bonneville Power Admtin.,

906 F.3d 1145, 1152 (9th Cir.2007) ("| T)]hev created new benefit

and obligati nN YC mpha is add d): Or Natural De sert Ass ri,

165 F.3d at 985 n.10 (recognizing “substantive legal constraints

imposed” by the challenged agency action), Alaska /, 244 F.3d at

(OO (explaming that the partees bringing suit “would be subje

criminal and civil penalties for the violation of [the ag

orders], as well a r the violation t the an Air Act

(emphas idded)

Appendix A-14

does not contain those waters, then the CWA does not

require Fairbanks to acquire that permit. In either

case, Fairbanks’ legal obligations arise directly 2nd

solely from the CWA, and not from the Corps’ issuanc«

of an approved jurisdictional determination. See Gallo

Cattle Co. v. USDA, 159 F.3d 1194, 1199 (9th Cir.

1998) (agency decision not final agency action because

potential legal consequences flowed only from the

plaintiffs “disregard of its statutory obligation”).

Whether Fairbanks’ property is a _ jurisdictional

wetland (1.e., contains waters of the United States)

depends on its “vegetation, soil and hydrology’—the

land is what and where it is. The Corps does not alter

that physical reality or the legal standards used to

assess that reality simply by opining that a particular

site contains waters of the United States. See Nat'l

Ass'n of Home Builders v. Norton, 415 F.3d 8, 16 (D.C.

Cir. 2005) (agency action that “left the world just as it

found it . . . cannot be fairly described as

implementing, interpreting, or prescribing law or

policy”) (internal quotation marks omitted).

In withholding judicial review of the Corps’

approved jurisdictional determination, we do not

impair Fairbanks’ ability to contest the existence of

CWA regulatory jurisdiction. See Indus. Customers of

Nw. Utils. v. Bonneville Power Admin., 408 F.3d 638,

647 (9th Cir. 2005); see also Natl Ass'n of Home

Builders, 415 F.3d at 15. It is settled law that the

federal courts have the final say on the scope of the

CWA.” In exercising that authority, we would not give

Baccarat Fremont Developers, LLC vc. U.S, Army Corps

125 F.8d 1150. 1158 (9th Cir.2005) (remewing CWA

‘Vvyurisdiction in context of challenye to discharge permit’s

(continued...)

Appendix A-15

the government's position that CWA _ regulatory

jurisdiction exists any particular deference simply

because the Corps’ views on the matter were

formulated in the context of an approved jurisdictional

determination rather than, for example, a permit

application or enforcement proceeding.

Despite all this, Fairbanks urges that the Corps’

approved jurisdictional determination has three legal

consequences: it prevents Fairbanks from claiming in

mitigation that it had acted with good faith; it

effectively requires Fairbanks to submit to the CWA’s

permitting regime before proceeding with construction:

and it deprives Fairbanks of a “negative” jurisdictional

determination, which might have been relied upon as

a defense to enforcement action.'” We do not consider

* (..continued)

mitigation requirements): United States v. Phillips, 567 F.3d 846,

854-55 (9th Cir. 2004) (reviewing CWA regulatory jurisdiction in

context of motion to dismiss indictment); Headwaters, Inc. v.

Talent Irrigation Dist., 243 F.3d 526, 533 (9th Cir. 2001)

(reviewing CWA regulatory jurisdiction in context of citizen suit).

Fairbanks also contends that an approved jurisdictional

determination 1s judicially reviewable like an interpretive rule

that has a “substantial impact on the rights of individuals,” Am.

Postal Workers Union v. U.S. Postal Serv., 707 F.2d 548, 560 (D.C.

Cir. 1983), or the denial of a permit authorizing an otherwise

proscribed activity, John Doe, Inc. v. DEA, 484 F.3d 561, 566-67

(D.C, Cir. 2007). These arguments assume the desired conclusion:

such agency actions are judicially reviewable only insofar as they

have tangible legal consequences or otherwise alter the legal

relationship between the parties. See Oregon v. Ashcroft, 368 F.3d

1118, 1120(9th Cir. 2004) (holding that interpretive rule “1s a final

determination for jurisdictional purposes because the rule

imposies] obligations and sanctions in the event of violation [of its

provisions|’) (internal quotation marks omitted and alteration in

original) 13, Ontrast the Corps’ approved yurisdictional

Appendix A-16

these arguments persuasive and shall address each in

turn.

[7] “In determining the amount of a civil penalty

the court shall consider... any good-faith efforts to

comply with the applicable requirements [of the CWA]

” 33 U.S.C. § 1319(d) (emphasis added). As even

the Corps recognizes, an approved jurisdictional

determination could “eventually be evidence on the

issue of whether a particular course of conduct was

undertaken in good or bad faith.” But the possibility

that Fairbanks might someday face a greater risk of

increased fines should it proceed without regard to the

Corps’ assertion of jurisdiction does not constitute a

legal consequence of the approved jurisdictional

determination. Cf. City of Fremont v. FERC, 336 F.3d

910, 914 (9th Cir. 2003) (‘Because the FERC orders

attach legal consequences to the future ;

proceedings, they satisfy the finality prong of our

analysis.”) (emphasis added). Section 1319(d) does not

mention jurisdictional determinations, much less

assign them any particular evidentiary weight; thus,

any difficulty Fairbanks might face in establishing

sooad faith flows not from the legal status of the Corps’

determination as agency action, but instead from the

practical effect of Fairbanks having been placed on

notice that construction might require a Section 404

permit. See Ctr. for Auto Safety v. NHTSA, 452 F.3d

798,811 (D.C. Cir. 2006); Natl Ass'n of Home Builders,

415 F.3d at 15. The Corps’ approved jurisdictional

(...continued)

determination imposes no new or additional legal obligations on

Fairbanks. Itat most “simply ‘reminds’ affected parties of existing

duties” imposed by the CWA itself and commands nothing of its

own accord, See Citizens to Save Spencer County v. EPA, 600 F.2d

$44,876 n.153 (D.C. Cir. 1979)

Appendix A-17

determination has no more legal effect on Fairbanks’

ability eventually to assert a good faith defense than

would, for example, a report by a private wetlands

consultant informing Fairbanks that its property

contained wetlands.

[8] Fairbanks’ second argument, that the Corps’

approved jurisdictional determination “as much as

requires” and “makes [Fairbanks] subject to the CWA

permitting regime, an onerous administrative maze,”

likewise erroneously conflates a potential practical

effect with a legal consequence.'' We do agree that

now that Fairbanks is on the Corps’ radar screen, it is

at least plausible that the probability of enforcement

action if Fairbanks proceeds with construction without

'! We appreciate that navigating the CWA permitting process is

no small task. See Rapanos, 547 U.S. at 721 (plurality opinion)

(“The average applicant for an individual permit spends 788 days

and $271,596 in compieting the process, and the average applicant

for a nationwide permit spends 313 days and $28,915....”). Yet,

we must keep in mind that these are the costs of statutory

compliance with the CWA. Whether or not it has an approved

jurisdictional determination in hand, the owner of land that

contains waters of the United States must bear those costs.

Because any legal obligation to undergo the CWA pcrmitting

process does not artse from the Corps having expressed its view

that Fairbanks’ property its a wetland, we do not reach the Corps’

argument that agency action requiring a party to participate in

further agency proceedings is characteristically non-final

Compare Hecla Mining Co. v. EPA, 12 F.3d 164 (9th Cir. 1993)

(EPA's decision to list mine as “point source[ | discharging toxic

pollutants that are responsible for impairing the achievement of

water quality standards’ not final agency action because it

“serve(d] only to initiate proceedings’ and required no action on

mine's part until permitting process complete), with Hawatian

Elec. Co. v. EPA, 723 F.2d 1440, 1442 43 (9th Cir. 1984) (EPA's

determination that generators proposed fuel change constituted

a “major modification” was final agency action because it required

use of more rigorous “major modification” PSD permit review)

Appendix A-18

securing a Section 404 permit is greater than it was

before it requested an approved jurisdictional

determination. Not every agency “decision .. . [that]

has immediate financial impact,” or even “profound

[economic] consequences” in the real world, is final

agency action, however. See Indus. Customers of Ne.

Util., 408 F.3d at 646-47. Whatever Fairbanks now

chooses to do, it will be no more or less in violation of

the CWA than if it had never requested an approved

jurisdictional determination. The approved

jurisdictional determination did not augment the

Corps’ legal authority to pursue enforcement action.

To the contrary, Fairbanks’ lIcgal obligations—

including any obligation to pursue a Section 404

dredge and fill material discharge permit—have

always arisen solely on account of the CWA. See Gallo

Cattie, 159 F.3d at 1199.

[9] Fairbanks’ final point is a non sequitur. It

contends that because a Corps determination that a

property does not contain “waters of the United States”

has legal consequences, a Corps determination that a

property does contain jurisdictional waters likewise

has legal consequences.'~ Implicit in Fairbanks’

Fairbanks may be correct that an official Corps statement that

a property 1s not a jurisdictional wetland subject to the CWA's

permitting requirements could be the basis for an estoppel

defense. When an authorized government official tells the

defendant that a course of uction is legal and the defendant

reasonably relies to its detriment on that’ erroneous

representation, then fairness and due process may prohibit the

state from punishing the defendant for that unlawful conduct. See

lU’nited States v. Brebner, 951 F.2d 1017, 1024-25 (Sth Cir. 1991);

United States v. Tatimadge, 829 F.2d 767, 773 (9th Cir. 1987)

Courts heve recognized that finality can result “if the language of

the document 1s such that private parties can rely on it as a

(continued...)

Appendix A-19

argument is the dubious premise that if an agency’s

decisionmaking process has multiple outcomes and any

of these outcomes is judicially reviewable, then all of

them must be judicially reviewable. We have not been

directed to any authority recognizing this asa principle

of administrative law. Unsurprisingly so: the law is

replete with situations when the availability of judicial

review turns on the effect of the agency’s particular

decision. Agency action that does not cause injury in

fact is not judicially reviewable due to lack of standing.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560

(1992). And agency action that does not “impose an

obligation, deny a right, or fix some legal relationship”

is not judicially reviewable due to lack of finality.

Ukiah Valley Med. Ctr., 911 F.2d at 264. Whether a

Corps finding that a property is not subject to

regulatory jurisdiction under the CWA_ would

constitute final agency action is beside the point here,

where Fairbanks seeks judicial review of a Corps’

finding that its property is subject to CWA regulatory

jurisdiction. A negative finding would effectively

assure Fairbanks that the Corps would not later be

able to fault Fairbanks’ failure to seek a permit. The

affirmative finding simply puts Fairbanks on notice

that the Corps believes a permit is necessary if

Fairbanks decides to proceed with its project.

CONCLUSION

[10] We do not have jurisdiction to review the

Corps’ approved jurisdictional determination finding

that Fairbanks’ pro;. rty contains wetland subject to

CWA regulatory jurisaiction. Although the approved

(...continued)

safe harbor by which to shape their actions.” Gen. Elec. Co

FPA, 290 F.3d at 383 (internal quotation marks omitted)

Appendix A-—20

jurisdictional determination is the Corps’ official, last

word about its view of the status of Fairbanks’

property, the Corps’ view does not impose an

obligation, deny a rignt or fix some legal relationship.

Accordingly, it is not final agency action under the

APA.

AFFIRMED.

Appendix B-1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ALASKA

FAIRBANKS NORTH . Case No. 4:06-cv-

STAR BOROUGH, 0026-RRB

Plaintiff,

VS. ORDER

UNITED STATES ARMY Sy

CORPS OF ENGINEERS: +

BRIGADIER GENERAL. Gian oye

JOHN W. PEABODY, a

Division Engineer; and THE PLEADINGS

ris gineer; al aayrapayeenaernass

COLONEL KEVIN J. (DOCKET 16)

WILSON, Commander of

the Alaska Engineer

District,

Defendants.

INTRODUCTION

At Docket 16 are Defendancis United States Army

Corps of Engineers, et al. (hereinafter collectively

referred to asthe “Corps’), with a Motion for Judgment

on the Pleadings. In essence, the Corps argues the

The Cerps’ motion 1s brought pursuant to f

which provides

After tiie pleadings are closed but within such time as 1

to delay the trial, any party may move for judgment on the

pleadings. [f, on a motion for judgment on the pleadings,

matters outside the pleadings are presented tu and not

excluded by the court, the motion shall be treated

Appendix B-—2

instant matter should be dismissed because the Court

lacks the requisite subject matter jurisdiction

necessary to hear the same.” More specifically, the

Corps contends: (1) the regulatory jurisdictional

determination at issue is not a “final agency action”

subject to review under the Administrative Procedure

Act (“APA”); (2) the matter is not ripe; (8) the Clean

Water Act (“CWA”) precludes judicial review of the

regulatory jurisdictional determination; (4) Plaintiff

Fairbanks North Star Borough (“North Star”) lacks

Article Ill standing to challenge Special Public Notice

2003-5; and/or (5) North Star lacks Article III standing

to challenge the Corps’ regulatory jurisdictional

determination, which it alleges does not determine any

rights or obligations, or have any legal consequences.”

North Star opposes at Docket 21 and contends: (1) the

regulatory jurisdictional determination constitutes

‘final ageiucy action”; (2) the jurisdictional

determination 1s ripe for judicial review; (8) the CWA

does not preclude review of the _ jurisdictional

determination; and (4) North Star has Article IJ]

(...continued)

summary judgment and disposed of as provided in Rule 56

and all parties shall be given reasonable opportunity to

‘sent all matenal made pertinent to such a motion by

i

Rule 56

Appendix B-3

standing to challenge the jurisdictional determination."

The Court disagrees.”

II. FACTS

“The property at issue in this case comprises 2.1

acres which [North Star] wishes to develop into

playgrounds, athletic fields, restrooms, concession, and

related structures.”®

On October 26, 2005, North Star requested

that the Corps make a_ jurisdictional

determination of the _ property.['] On

November 38, 2005, the Corps issued a

preliminary jurisdictional determination

* Docket 21 at 1. Inasmuch as the parties agree North Star lacks

Article IJI standing to challenge Special Public Notice 2003-05,

which the Corps rescinded five months before {North Star] filed its

Complaint, see Docket 24 at 2n.1, North Star’s challenge to Special

Public Notice 2003-05 is hereby DISMISSED as moot. See also

Dockct 21 at 2 n.i.

Inasmuch as the Court concludes the parties have submitted

memoranda thoroughly discussing the law and evidence in support

of their positions, it further concludes oral argument is netther

necessary nor warranted with regard to the instant matter. See

Mahon v. Credit Bureau of Placer County Inc., 171 F.3d 1197, 1200

(9th Cir. 1999) (explaining that if the parties provided the district

court with complete memoranda of the law and evidence in

support of their positions, ordinarily oral argument would not be

required). For this reason, North Star's Request for Oral

Argument at Docket 25 was DENIED. Sce Docket 26

Docket 21 at 3

“When requested, the Corps can make a_ jurisdictional

determination to decide whether a putative ‘water of the United

States’ is within its regulatory jurisdiction under the CWA and

thus whether a permit 1s even necessary ' Docket 17 at o (citing

t

33 C_FLR. §§ 320.1(a)(6), 325.9)

Appendix B.-4

concluding that the property contains “waters

of the United States” subject to the Corps’

jurisdiction under the CWA.°

North Star subsequently requested a final

determination. “On December 13, 2005, the Corps

issued a positive final jurisdictional determination,

finding that [North Star’s] entire parcel contains

waters of the Untied States.”

On February 8, 2006, North Star filed an

administrative appeal of the jurisdictional

determination. On May 25, 2006, the Corps

found that the appeal did not have merit.|'”|

To date, North Star has never applied for a

permit from the Corps to conduct activities on

the property. In addition, the United States

has not initiated any action to enforce the

CWA on the property. '!

fil. STANDARD OF REVIEW

A party 1s entitled to judgment on the pleadings

pursuant to Rule 12(c) when “taking all allegations in

the pleading as true, the moving party 1s entitled to

Docket 17 at 6 (citations omitted)

Docket 21 at 3-4 (citation omitted)

“On May 26, 2006, the Corps’s [sic] then appellate officer

Brigadier General - John W. Peabody, denied the appeal and upheld

the Corps's [sic] jurisdictional determination.” dd. at 4 (citation

omitted)

Docket 17 at 6 (citations omitted)

Appendix B—5

judgment as a matter of law.”'” The court views the

alleged facts and all inferences in the light most

favorable to the nonmoving party.'’ If allegations

conflict, the court accepts the nonmoving party's

allegations as true.'* The moving party must establish

beyond doubt that the nonmoving party can establish

no set of facts supporting its claim before the court

may grant a Rule 12(c) motion.'”

IV. DISCUSSION

A. The jurisdictional determination does not

constitute final agency action.

“The APA limits judicial review to ‘final agency

action.””° In Bennett v. Spear, 520 U.S. 154, 177-78

(1997),

[T]he Supreme Court found that two

conditions must be satisfied for agency action

to be final: (1) “the action must mark the

‘consummation of the agency’s decision

making process’; and (2) “the action must be

one by which ‘rights or obligations have been

McGann v. Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996),

cert. dented, 520 U.S. 1181, 11758. Ct. 1460 (1997). See also Geraci

v. Hlomestreet Bank, 347 F.3d 749, 751 (9th Cir. 2003) (“A motion

for judgment on the pleadings should be granted where it appears

the moving party is entitled to judgment as a matter of law.”)

5C Charles Alan Wright and Arthur R. Miller. Federal Practice

and Procedure § 1368 (4d ed (04)

' Id

‘ Enron Oul Trading & Trans;

F.3d 526, 529 (9th Cir. 1997)

Appendix B—6

determined or from which ‘legal

consequences will flow.”

The jurisdictional determination at issue merely

informed North Star where it stood with respect to

potential permitting issues. As a result, the Court

concludes it “did not mark the consummation of the

Corps’ decision making process.”'” Moreover, it did not

affect the legal rights and/or obligations of the parties.

Indeed, “the legal rights and/or obligations of the

parties were precisely the same the day after the

jurisdictional determination was issued as they were

the day before.”’” Consequently, the Court further

concludes the “jurisdictional determination is not a

final agency action subject to APA review.”” For

similar reasons, the matter is not ripe

B. The jurisdictional determination is not ripe

for judicial review.

Interpreting its own rules and regulations, the

Corps has declared,

In the past, a number of courts have held that

jurisdictional determinations are not ripe for

review until a landowner who disagrees with

a |jurisdictional determination] has gone

le

through the permitting process. The Federal

Appendix B—-7

Government believes this 1s the correct result

‘The Corps further rationalized:

Physical circumstances can change over time,

and the scope of regulatory jurisdiction when

a [jurisdictional determination] is initially

performed might be different from the scope

of jurisdiction when a permit application is

reviewed or when an enforcement action is

taken.

As a result, and because the Court “owes substantial

deference to an agency’ reading of its own

regulations,”*- North Star’s challenge to the

jurisdictional determination is not. ripe.*°

“Furthermore, even if the jurisdictional determination

were a final agency action and ripe for review, the

APA's waiver of sovereign immunity does not apply

when ‘statutes preclude judicial review.”””"

C. The CWA precludes” review of all

pre-enforcement agency actions, including

jurisdictional determinations.

Indeed, the Corps “initial determination that it

has authority to either require permitting|,| or issue

hy Fed Reg if 16488 (Mar t

1. American Ins

L137 (9th 2004)

\ claim ist "ipe fe dyuc ation it res upon contingent

future events thi n not uras antic)

pated, or indeed may not

I

ecur at al Docke a S.,523 U.S. 296

$00 (L998) (citation

' Docks

Appendix B—&

orders in the absence of a permit application|[, are]

unreviewable.”””

V. CONCLUSION

For these reasons, and for additional reasons more

clearly articulated within the relevant pleadings,*° the

Corps’ Motion for Judgment on the Pleadings at

Docket 16 is hereby GRANTED. Notwithstanding,

inasmuch as nothing determined herein prevents

North Star from refiling once final agency action has

been taken and all administrative remedies have been

exhausted, the matter is DISMISSED WITHOUT

PREJUDICE.

ENTERED this 18th day of May, 2007.

S/RALPH R. BEISTLINE

UNITED STATES DISTRICT JUDGE

Docket 24 at 14 (quoting Ructh v. U.S. E.P.A., 13 F.3d 227, 229

(7th Cir. 1993) (quoting Rueth Development Co., Inc. v. U.S.

E.P.A., 1992 WL 560944, at *2 (N.D. Ind. 1992)); and citing Child

v. ULS., 851 F. Supp. 1527, 1533 (D. Utah 1994) (holding that

plaintiff had no right to pre-enforcement review of jurisdictional

determination by the Corps)). Although not authoritative, the

Court finds these cases to be particularly persuasive. Sce also

Baccarat Fremont Developers, LLC v. U.S. Army Corps of

Engineers, 425 F.3d 1150, 1153 (9th Cir. 2005) (“[Plaintiff] signed

the permit, [thus] preserving the right to seek judicial review of

the Corps’ jurisdictional determination’ )

For example, the Corps argument regarding the Leedom

doctrine 1s particularly persuasive. As a result, the Court finds

that the “severely limited circumstances necessary to invoke the

Leedom doctrine are not present in the instant matter. See

Leedom v. Kyne, 358 U.S. 184 (1958): and Board of Governors of

Federal Reserve System v. MCorp Financial, Inc., 502 U.S. 32

4 (1991

Appendix C-1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FAIRBANKS NORTH STAR No. 07-35545

BOROUGH, Solan

D.C. No.

CV-6-0026-F-

Plaintiff - Appellant, RRB

- ORDER

U.S. ARMY CORPS OF FILED

ENGINEERS; JOHN W. | Nov. 20, 2008

PEABODY; KEVIN J. WILSON,

Defendants - Appellees.

Before: D. NELSON, TASHIMA and FISHER, Circuit

Judges.

Judge Fisher has voted to deny the petition for

rehearing en banc, and Judges D. Nelson and Tashima

so recommend.

‘The full court has been advised of the petition for

rehearing en banc and no judge has requested a vote

on whether to rehear the matteren banc. Fed. R. App.

r. 35.

The petition for rehearing en banc, filed October

23, 2008, is DENIED.