Opposition Brief — Fairbanks North Star Borough v. United States Army Corps of Engineers (No. 08-1052)

No. 08-1052

Jn the Supreme Court of the Gnited States

FAIRBANKS NORTH STAR BOROUGH, PETITIONER

U.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELENA KAGAN

Solicitor General

Counsel 0} Record

JOHN ©. CRUDEN

Acting A ss7i~Stant Attorie iy

General

AARON P. AVILA

Attorney

De partment of Justice

Washington, D.C. 20580-0007

43 } ry iD

(ZOOS) 214 oe a

QUESTION PRESENTED

Whether the Army Corps of Engineers’ determina-

tion that petitioner’s property contains “waters of the

United States” protected by the Clean Water Act consti-

tutes “final agency action” subject to judicial review un-

der the Administrative Procedure Act.

TABLE OF CONTENTS

Page

fd, POPE TER ECC CPR RUSE CLC CTE RT Pee TOC ee ]

UE on ood Se eee bo ee ee eee ae eee l

NIG yo os ova syns bE BAAR ES ee eae ae eee l

PL Faas + sin he OG Rew eee ee R SECURE NRE SS aA 6

NIN is fo ae bre Wo ae we ee Ok ee A ee 16

TABLE OF AUTHORITIES

Cases:

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ........... 15

Auer v. Robbins, 619 U.S. 452 (1997) «0... eee eens 13

Bennett v. Spear, 520 U.S. 154 (1997) ................ 4,5

Board of Governors of the Fed. Reserve Sys. v.

MCGorn Fin., ne., GE U.S. SS CIGBL) oc ckceicccecs 14

Carabell v. United States Army Corps of Eng’rs,

391 F.3d 704 (6th Cir. 2004), vacated on other

grounds, G47 U.S. TIS (OO) «vec cccccccusssvevcoees 3

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

SIS kes Enos are beta a ee a ae An ee ee Weta ee es D

Commissioners of Pub. Works v. United States,

ee et OR Ge ee) np ko ob es he oe ok eae es 6

Digital Equip. Corp. v. Desktop Direct, Inc.,

511 ULS. 863 (1994) ee are 1]

FTC v. Standard Oil Co., 449 U.S. 232 (1980) .......... 10

Greater Gulfport Props., LLC v. United States Army

Corps of Eng’rs, 194 Fed. Appx. 250 (5th Cir. 2006) 6

Hoffman Group, Inc. v. HPA, 902 ’.2d 567

(7th Cir. 1990) .... Rte IA Rr rar PL ene roe 15

Leedom v. Kyne, 358 U.S. 184 (1958) 12.13, 14

[I 1)

[V

Cases—Continued Page

National Park Hospitality Ass'n v. Department

of the Interior, 538 U.S. 803 (2003) ..........cccceee 15

OPM v. Richmond, 496 U.S. 414 (1990) ......2.022202... &

Puerto Rico Aqueduct & Sewer Auth. v. Metcalf &

BGay, 1nc., GUS US. LGU (TORS) 2 ccc cceccccuccans 1]

Rochester Tel. Corp. v. United States, 307 U.S. 125

bo ROR Pr eo ae ty ee or ray eee ee 10

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

RS oe ee ot ee we a eae ee A

Southern Pines Assocs. by Goldmever v. United

Sites, Gis F 2G (ie (40 AG. 10D) onc cece ccaans 15

l/nited States v. Deaton, 332 F.3d 698 (4th Cir. 2003),

cert. denied, 641 U.S. 972 (2004) . 5... cc ccc ee cccses 3

Webster v. Fall, 266 U.S. 507 (1925) ............. 2.006 7

Will v. Hallock, 546 U.S. 345 (2006) ...........0.0000- 11

Statutes and regulations:

Administrative Procedure Act, 5 U.S.C. 701 et seq. ...... 3

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

NE tek OM BLE EC 0 0) Sr Py ee

go U4). 191Ma)..... a eG = 3

Ke ROR. OTe Gee Bt) ee 3

30 U..C. 1ISIS(d) (§ SOM d)) .........0006. 10

ou U.t.C. 1842(§ 402)... 2... Garg alate: Beat neers ine

33 U.S.C. 1344 (§ 404) Z, 3, 10, di

3 ULS.C. 1344(a) :

bo USC. badd(s) ........ 3

By U.S.C. 13862(7 )

V

Statutes and regulations—Continued:

National Labor Relations Act § 9(b)(1),

29 U.S.C. 159(b)(1)

Rivers and Harbors Appropriations Act of 1899

33 U.S.C. 401 et seq.

28 U.S.C. 1291

33 C.F.R.:

Pt. 320:

oo | ne ee

Pt. 323 ..

Pt. 325

Pt. 326:

Section 326.3(c)

Section 326.5

Pt. 331

a ye 6 i

M iscellaneous:

65 Fed. Reg. 16,488 (2000)

Su the Supreme Court of the Ginited States

No. 08-1052

FAIRBANKS NORTH STAR BOROUGH, PETITIONER

Uv.

UNITED STATES ARMY CORPS OF ENGINEERS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A20) is reported at 543 I°.3d 586. The opinion of the dis-

tricl court (Pet. App. B1-BS8) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

September 12, 2008. A petition for rehearing was denied

on November 20, 2008 (Pet. App. C1). The petition for

a writ of certiorari was filed on February 13, 2009. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

l. Section 301(a) of the Clean Water Act (CWA) pro

hibits the “discharge of any pollutant”-—-defined as the

addition of any pollutant to the “waters of the United

>

—

States” from any point source—except “as in compliance

with” specified provision of the CWA. 33 U.S.C. 1311(a),

1362(7), 1362(12). The CWA allows discharges under

two complementary permitting provisions. Section 404

authorizes the Army Corps of Engineers (Corps) to is-

sue a permit “for the discharge of dredged or fill mate

rial into the navigable waters at specified disposal sites.”

33 U.S.C. 1344(a) and (d). Section 402 authorizes the

Environmental Protection Agency (EPA) to issue a per-

mit for the discharge of any pollutant other than

dredged or fill material. 33 U.S.C. 1342.

The Corps’ regulations authorize (but do not require)

the Corps, upon a Jandowner’s written request, to pro-

vide the agency’s view on whether particular property

contains “waters of the United States” within the agen-

ey’s regulatory jurisdiction under Section 404 of the

CWA. See 33 C.F .R. 320.1(a)(6), 331.2; 33 C.F.R. Pt. 331

App. C. After the Corps issues an “approved” jurisdic-

tional determination, the landowner may pursue an ad-

ministrative appeal of that determination within the

Corps. See 33 C.F.R. Pt. 331. Such jurisdictional deter-

minations “do not include determinations that a particu-

lar activity requires a * * * permit.” 33 C.F.R. 331.2.

Neither the CWA nor its implementing regulations

require that a landowner obtain a jurisdictional determ1

nation. Whether or not it obtains such a determination,

a landowner planning to discharge dredged or fill mate-

rial has two options. First, the landowner may apply for

a Section 404 permit from the Corps. See 338 U.S.C.

1344; 40 C.F.R. Pt. 230; 33 C.F.R. Pts. 323, 325. The

ageneyvs final permitting decision, including the Corps’

determination whether the property at issue contains

waters protected by the CWA, is then subject to judicial

review under the Administrative Procedure Act (APA),

os

5 U.S.C. 701 et seg. See, e.g., Carabell v. United States

Army Corps of Eng’rs, 391 F.3d 704, 706-707 (6th Cir.

2004), vacated on other grounds, 547 U.S. 715 (2006).

Alternatively, the landowner may proceed with its

discharge without a Section 404 permit and risk enforce-

ment proceedings. If the government determines that

a completed or ongoing discharge violates the CWA, it

may take administrative action, including issuance of a

“cease-and-desist” order, a compliance order, or both.

See 33 U.S.C. 1819(a), 13844(s); 33 C.F.R. 326.3(c). In

addition, the government may bring an enforcement

action in district court to obtain injunctive and other

relief. 33 U.S.C. 1319(b); 33 C.F.R. 326.5. At that time,

the discharger may raise any applicable defenses, in-

cluding the contention that its conduct did not violate

the CWA because it did not involve a discharge into

“waters of the United States.” See, e.g., United States

v. Deaton, 332 F.3d 698, 701-702 (4th Cir. 2003), cert.

denied, 541 U.S. 972 (2004).

2. Petitioner owns and wishes to develop approxi-

mately 2.1 acres of property in Fairbanks, Alaska. Pet.

App. A8. In October 2005, petitioner asked the Corps

for the agency’s determination of whether that property

contains waters protected by the CWA. /d. at A3-A4.

The Corps issued a “preliminary” jurisdictional determi-

nation concluding that the property contains “waters of

the United States” subject to the Corps’ regulatory au

thority under the CWA. 7d. at A4. Petitioner then re-

quested an “approved” jurisdictional determination from

the Corps. In response, the Corps explained that, based

on its review of the information available to it, the entire

parcel contained “waters of the United States.” /bid.

Petitioner then filed an administrative appeal of the ju

4

risdictional determination, which the Corps denied on

the merits. /bid.

Petitioner has never applied for a permit from the

Corps to develop its property, nor is there any indication

in the record that it has engaged in discharges without

a permit based on its view that the property does not

contain waters protected by the CWA. Instead, peti

tioner brought suit in federal district court seeking

vacatur of the Corps’ jurisdictional determination. Pet.

App. A4-A5.

3. The district court granted the Corps’ motion for

judgment on the pleadings and dismissed petitioner’s

complaint (without prejudice) for lack of jurisdiction

Pet. App. B1-Bs8.

a. The district court found that the Corps’ jurisdic

tional determination was not subject to judicial review

pursuant to the APA because it was not “final agency

action” under Bennett v. Spear, 520 U.S. 154, 177-178

(1997). Pet. App. B5-B6. The court held that the Corps’

determination neither marked the consummation of the

agency's decisionmaking process nor affected the legal

rights or obligations of the parties. /d. at Bb. The court

explained that the determination “merely informed |pe

titioner] where it stood with respect to potential permit

ting issues,” and that “the legal rights and/or obligations

of the parties were the same the day after the jurisdic

tional determination was issued as they were the day

before.” bid. (citation omitted)

b. The district court held, in the alternative, that pe

tilioner’s lawsuit was not ripe. Pet. App. b6-b7, ‘The

court agreed with the Corps that challenges to the

agency's jurisdictional determinations are not ripe for

judicial review until the property owner who disagree:

with a determination has completed the permitting pro

cess or is subject to an enforcement action. /bid. The

court also explained that both the physical and legal

circumstances on which a jurisdictional determination is

based can change over time. /d. at B7.

ce. The district court held that even if the Corps’ ju

risdictional determination were “final agency action”

and ripe for review, the APA does not apply when an-

other statute precludes judicial review. Pet. App.

B7-B8. The court concluded that the CWA precludes

review of all pre-enforcement actions by the Corps, in-

cluding jurisdictional determinations. /d. at B7-B8 &

n.25 (citing, e.g., Rueth v. United States HPA, 13 F.3d

227, 229 (7th Cir. 1993), and Child v. United States, 851

kK’. Supp. 1527, 1533 (D. Utah 1994) (mem.)).

4. The court of appeals affirmed. Pet. App. Al-A20.

The court held that the Corps’ jurisdictional determina

tion was not “final agency action” subject to judicial re

view under the APA. /d. at AZ. In reaching that conclu

sion, the court applied the two requirements for “final

agency action” identified by this Court in Bennett. bid.

The court of appeals agreed with petitioner that the

Corps’ determination satisfied the first hennett require

ment, because “an approved jurisdictional determination

upheld in the Corps’ administrative appeal process

‘mark|s| the consummation of the agency's decisionmak

ing process’ for determining whether the Corps con

ceives a property as subject to CWA regulatory jurisdic

tion.” Pet. App. A&S (brackets in original) (quoting ben

nell, 520 Us. at 178). The court concluded, however,

that the Corps’ jurisdictional determination did not sat

istvy Bennetts second requirement because it “is not an

‘action by which rights or obligations have been

determined, or trom which ‘legal consequences will

flow” Jd. at AL2 (quoting: Bennett, 520 U.S. at 178

6

The court explained that petitioner’s “rights and obliga-

tions remain unchanged by the approved jurisdictional

determination.” /bid. The court noted that “{iJn any

later enforcement action, | petitioner] would face Jiability

only for noncompliance with the CWA’s underlying stat-

utory commands, not for disagreement with the Corps’

jurisdictional determination.” /d. at Al3. The court also

explained that its holding did not impair petitioner’s

ubility to contest the substance of the Corps’ jurisdic

Lional determination at a later time, either by seeking

judicial review of a subsequent permitting decision or by

asserting the absence of CWA coverage as a defense to

any enforcement action. /d. at Al4-Al15 & n.9.'

ARGUMENT

The court of appeals’ decision is correct and does not

conflict with any decision of this Court or any other

court of appeals. As the district court correctly held,

moreover, the Corps’ jurisdictional determination would

not be ripe for judicial review even if it constituted “final

agency action.” Further review is not warranted

1. The decision below does not conflict with any de

cision of this Court or another court of appeals. Two

other courts of appeals appear to have considered the

issue in unpublished opinions, and both reached the

sume conclusion as the Ninth Circuit did in this case

Pet \pp Aj n. ° citing Create? Gulfport Props LLA

Vv. lnited States Army ( ‘Orp, of Ena'vs, 194 Fed Appx

7°50 (oth Cir. 2006) (per curiam) and Commissioners of

Pub. Works v. United States. 30 le 8d 129 (4th Cir. 1994

7

(table)). Petitioner identifies no conflicting decision of

this Court or another court of appeals.”

2. Petitioner argues (Pet. 13-15) that the Corps’ ju-

risdictional determination constituted “final agency ac-

tion” that is reviewable under the APA. But petitioner

does not dispute the court of appeals’ articulation of the

governing legal standard, including its reliance on the

Bennett framework for identifying “final agency action.”

Rather, petitioner argues only that the court erred in its

application of that standard (specifically, Bennett’s sec-

ond requirement) and in its ultimate conclusion that the

Corps’ jurisdictional determination does not have legal

consequences.”

~ Amicus National Association of Home Builders contends (at 9-12)

that the decision below conflicts with court of appeals decisions concern-

ing jurisdictional determinations under the Rivers and Harbors Appro-

priations Act of 1899, 33 U.S.C. 401 et seg. Those decisions are inap-

posite for at least two reasons. First, those cases deal with a different

statute. Second, none of those decisions explicitly addressed the ques

tion whether the Corps’ determination under the Rivers and Harbors

Act constituted “final agency action” within the meaning of the APA.

Rather, amicus relies on the fact that the courts in those cases decided

the plaintiffs’ challenges on the merits. Cf. Webster v. Fall, 266 U.S.

HOT, SLL (1925) (“Questions which merely lurk in the record, neither

brought to the attention of the court nor ruled upen, are not to be

considered as having been so decided as to constitute precedents.”)

The court of appeals held that the Corps’ jurisdietional determina

tion marks the consummation of the agency's decisionmaking process

and therefore satisfies the first prong of Bennett's test for “final apenes

uetion.” See Pet. App. AX. But while a jurisdictional determination may

represent the Corps’ concluded view on a particular issue of CWA cov

erage atu particular tine, the agen \ ‘'s determination that specie

property is oris not protected by the ¢ ‘WA is subject to reconsideration

if, for example, the physical conditions on the site have changed by th

tirve that ,pern it | soueht ot wal charge occu See two hed Ki i

lh ISS (ZOU When prart apples fora permit wthe Corps brings an

8

That argument lacks merit. As the court of appeals

correctly recognized, petitioner’s “rights and obligations

remain unchanged by the approved jurisdictional deter-

mination. It does not itself command [petitioner] to do

or forbear from anything; as a bare statement of the

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

ate compliance’ nor of defiance.” Pet. App. Al2. A prop-

erty does not become more or less subject to the CWA

simply because the Corps states its view on the coverage

issue at a landowner’s request in advance of any permit

procecdings.

Petitioner identifies three potential legal conse-

quences of a Corps jurisdictional determination that, in

its view, satisfy the second prerequisite to “final agency

action” identified by this Court in Bennett. First, peti-

tioner contends (Pet. 11, 13) that the Corps’ determina-

tion that a property does not contain waters of the

United States could provide the basis of an estoppel de-

fense. The premise of petitioner’s argument—that a

negative jurisdictional determination provides an es-

toppel defense against the government—is dubious.

This Court has never held that such an estoppel claim

could succeed against the government. See OPM vy.

Richmond, 496 U.S. 414, 419, 423 (1990). In any event,

that is not the sort of legal consequence that Bennett's

second prong contemplates. The possibility that “fair-

ness and due process” (Pet. App. Al8 n.12) may ulti-

mately prohibit the government from punishing an indi-

vidual for unlawful conduct where an individual reason-

ably relied on a statement of a government officer that

enforcement action, the Corps assesses the issue of CWA Coveraye

mased on the conditions at the time of the permit application or the al

red Viokation

Q

turns out to be incorrect is not a direct legal conse-

quence of the agency action.

Second, petitioner asserts (Pet. 13-14) that a jurisdic-

tional determination has legal consequences because it

“directly and immediately alters a landowner’s course of

conduct” by requiring it to seek a CWA permit to con-

tinue a project. That is incorrect. As the court of ap-

peals correctly explained, although the jurisdictional

determination may have put manages on — Corps’

radar sereen,” petitioner retains the ability either to

proceed with construction or to apply for a ote 4 and

“it will be no more or less in violation of the CWA than

if it had never requested an approved jurisdictional de-

termination.” Pet. App. Al7-A18. Thus, petitioner may

apply for a permit and contest the issue of CWA cover-

age if the Corps denies the application, or it may engage

in pollutant discharges and raise the coverage question

as a defense to any enforcement action that the govern-

ment may bring. To be sure, petitioner will be subject

to penalties if it proceeds without a permit and its view

of CWA coverage is ultimately rejected by the courts;

but that would be equally true if the Corps had never

rendered a jurisdictional determination. Petitioner’s

obligation to obtain a permit before discharging pollut-

ants into the “waters of the United States” is imposed by

the CWA and implementing regulations, not by the

Corps’ jurisdictional determination.

Petitioner's mere desire to avoid the permitting pro-

cess cannot transform the jurisdictional determination

into judicially reviewable agency action. Petitioner does

not dispute that it has the option of applying for a per-

mit: it simply prefers not to do so. A non-final agency

order, however, is one that “does not of itself adversely

affect complainant but onty affects his mghts adversely

10

on the contingency of future administrative action.’

Rochester Tel. Corp. v. United States, 307 U.S. 125, 130

(1939). This Court has recognized, for ex ample, that an

agency's complaint requiring a compeny te respond in

an administrative adjudication was not final agency ac-

tion. See FTC v. Standard Oil Co., 449 U.S. 232, 239-243

(1980). The burden of participating in an administrative

process, even where “substantial,” is different in kind

and legal effect from the burden attending “final agency

action.” /d. at 242. The jurisdictional determination

here does not require petitioner te de anything at ali and

therefore is even less final than the administrative com-

plaint involved in Standard Oil.

Third, petitioner contends (Fet. 14-15) that the ju-

risdictional determination has legal consequences be-

cause it “substantially increases the likelihood that any

civil fine assessed against the landowner will be greater

than otherwise would be the case.” The CWA directs a

court In assessing an appropriate civil penalty to con-

sider, inter alia, any good-faith efforts to comply with

the CWA’s requirements. 38 U.S.C. 1319(d). But the

CWA's civil-penalty provision does not mention, much

less assign any particular evidentiary weight to, the

Corps’ prior issuance of a jurisdictional determination.

“{T)Jhus, any difficulty [petitioner] might face in estab

lishing good faith flows not from the legal status of the

Corps’ determination as agency action, but instead from

the practical effect of [petitioner] having been placed on

notice that construction might require a Section 404 per-

mit.” Pet. App. Al6. As the court of appeals explained,

petitioner would be in essentially the same position if it

had obtained a report from a private consultant that

1]

concluded that the property contained waters protected

by the CWA. 7d. at A16-A17."

3. Petitioner also asserts (Pet. 12, 15-18) that the

court of appeals’ “decision conflicts with the settled rule

that CWA permit decisions are judicially reviewable.”

The distinction between permitting decisions and juris-

dictional determinations, however, is readily apparent.

The grant or denial of a permit, unlike a jurisdictional

determination, determines rights or obligations and has

legal consequences. The CWA makes unlawful the “dis-

charge of any pollutant by any person” except as in com-

Tee sie hs ; ; =e ee se a oe.

puahce with other secrviens of the CWA. includ if SEL

tion 404. 33 U.S.C. 1311(a), 1344. When the Corps

grants a Section 404 permit, the permit sets the condi-

tions under which a discharge into waters of the United

States may lawfully oceur. If the discharger complies

with the terms of the permit, it does not violate the

CWA. Similarly, the denial of a Section 404 permit by

Amicus State of Alaska argues (at 16-24) that the Corps’ jurisdic-

tional determination should be appealable under the collateral order

doctrine. That argument was neither pressed nor passed upon below,

and it is meritless. The collateral order doctrine permits appellate

courts to exercise jurisdiction under 28 U.S.C. 1291 over “‘a narrow

class of [federal district court] decisions that do not terminate the liti-

gation, but are sufficiently important and collateral to the merits that

they should ‘nonetheless be treated as final."” Well v. Hallock, 546 US.

345, 347 (2006) (quoting Digatal Equip. Corp. v. Desktop Direct, Inc.,

511 US. 863, 867 (1994)). Amicus cites no case in which this Court has

invoked the doctrine to allow an APA suit in district court challenging

an administrative agency decision. In any event, for the reasons ex-

plained above, the jurisdictional determination is not suffictently sep-

arate from the ultimate permitting deeision, nev is it “effectively unre-

viewable” ata later time (because petitioner could dispute the question

of CWA coverage after a final permitting decision or during a subse-

quent enforcement action). 7d. at 549 (quoting Puerto Rico Aqueduct

& Newer Avedh. v. Metcalf & kdd /, > |. 106 UES 139, 144 (1993

12

the Corps has operative legal consequences because it

forecloses that avenue by which an individual can dis-

charge pollutants into “waters of the United States”

without violating the CWA. Tue Corps’ issuance of a

jurisdictional determination entails no similar binding

consequences. Rather, it is in substance an advisory

opinion that reflects the agency’s current assessment of

the manner in which one issue bearing on a future per-

mit application or enforcement action would likely be

resolved.

4. Petitioner contends (Pet. i&-21) that the court of

apneals reiected sub silentio its additional argument

that “even ii a Jurisdictionai Determination would noi-

mally not be subject to judicial review, any such bar

should be removed given the magnitude of regulatory

overreach produced by the Corps’ theory justifying reg-

ulation of [petitioner’s| property.” Relying on dicta ina

Seventh Circuit case (Rueth v. United States EPA, 13

F.3d 227 (1993)) and on this Court’s decision in Leedom

v. Kyne, 358 U.S. 184 (1958), petitioner asserts (Pet. 19)

that judicial review of the Corps’ jurisdictional determi-

nation is available because the Corps’ action “implicates

the fundamental right to use and enjoy property.” That

argument is incorrect.

a. Asan initial matter, petitioner’s argument in the

court of appeals was not that the Rueth dicta and the so-

ealled Leedom doctrine provide an independent basis for

judicial review. Instead, petitioner relied on Rueth and

Leedom to assert that the district court’s alternative

holding—that even if the Corps’ jurisdictional determi-

nation was “final agency action” for purposes of the

APA, the CWA precluded judicial review (Pet. App. B7-

BsS)—was erroneous. See Pet. C.A. Br. 23-33; Pet. C.A.

Reply Br. 21-30. Because the court of appeals rested its

13

decision solely on the ground that the Corps’ jurisdic-

tional determination was not “final agency action,” it had

no occasion to address petitioner’s argument based on

Rueth and Leedom. And because petitioner’s current

formulation of the argument was neither pressed nor

passed on below, it is not properly before this Court.

See, e.g., Auer v. Robbins, 519 U.S. 452, 464 (1997) (de-

clining to consider argument because it “was inade-

quately preserved in the prior proceedings”).

b. In any event, neither the Rueth dicta nor the deci-

sion in Leedom supports petitioner’s effort to obtain

judicial review of the Corps’ jurisdictional determina-

tien. The Seventh Cireuit in Rueth rejected a challenge

to pre-enforcement activities (EX PA’Ss issuance of a Goim-

plianece order) under the CWA. 13 F.3d at 229-231. Pe-

titioner relies on the Rueth court’s statement that “it is

not inconceivable that the EPA or the Corps of Engi-

neers might completely overextend their authority. In

such a case, we suggest to those agencies that we will

not hesitate to intervene in pre-enforcement activity.”

fd. at 231. Nothing in Rueth suggests, however, that the

Seventh Circuit would regard the Corps’ jurisdictional

determination in this case as the sort of ultra vires con-

duct that would justify pre-enforcement review.

In Leedom, this Court indicated that a statutory pre-

clusion of review may be subject to a narrow exception

when the plaintiff asserts legal rights for which there is

no alternative means of vindication. 358 U.S. at 189-191.

Leedom involved a National Labor Relations Board

(Board) order that included professional and non-

professional employees in the same collective bargaining

unit —netwithstanding the fact that the professionals

had not been permitted to vote—in clear contravention

of Section 9(b)(1) of the National Labor Relations Act

14

29 U.S.C. 159(b)(1) (providing that the Board “shall not”

approve a mixed unit for collective bargaining purposes

unless a majority of professional employees vote for in-

clusion). Leedom, 358 U.©. at 184-186. The question

presented was whether the district court could review

the Board’s order given tnis Ccurt’s prior ruling that

such orders were not subject to judicial review wider

the Act (except in circumstances ina;plicable in Lee-

dom). Id. at 187. The Court held that the district court

had jurisdiction, explaining that a contrary decision

“would mean a sacrifice or obliteration of a right which

Congress has given professional employees for there is

no other means within their control to protect and en-

force thut right.” /4. at 190 (internal quotetion marke

and citation omitted); see Board of Governors of the Fed.

Reserve Sys. v. MCorp Fin., Inc., 502 U.S. 32, 42-44

(1991) (Leedom exception does not apply where plaintiff

has meaningful and adequate alternative opportunity for

judicial review of his claims).

The Rueth dicta and Leedom’s narrow exception are

inapplicable here. First, the Corps expressed its view,

at petitioner’s request, as to the scope of the agency’s

CWA jurisdiction. The Corps has not asserted, let alone

overextended, its authority in a binding manner. Sec-

ond, the lack of judicial review at this stage does not

entail “a sacrifice or obliteration” of any statutory right.

As explained above (p. 9, supra), petitioner may proceed

without obtaining a permit and, if the Corps brings an

enforcement action, petitioner may then press its argu-

ment that the site at issue is not covered by the CWA.

Petitioner will also have an opportunity for judicial re-

view of the Corps’ jurisdictional determination if it ap-

phes for a permit and the Corps demes the application

or imposes conditions that petitioner finds unacceptable.

ld

Third, unlike in Leedom, petitioner cannot show that

the agency acted contrary to an unambiguous statutory

provision. The Corps’ regulations expressly authorize,

but do not require, the Corps to issue jurisdictional de-

terminations. 33 C.F.R. 320.1(a)(6); see C.A. Supp. E.R.

19. And the CWA neither requires nor prohibits such

determinations. Although petitioner disagrees with the

Corps’ conclusion that the relevant property contains

waters protected by the CWA, the agency’s alleged er-

ror in applving the governing legal standards to a par-

ticular parcel would not involve the sort of manifest

overreaching on which the Leedom exception is pre-

mised.

5. Even if the Corps’ jurisdictional determination

constituted “linal agency aclion” ander the APA, und

assuming the CWA does not preclude judicial review,”

that determination would not be ripe for judicial review.

The ripeness doctrine is intended “to prevent courts

* * * from entangling themselves in abstract disagree-

ments over administrative policies, and also to protect

the agencies from judicial interference until an adminis-

trative decision has been formalized and its effects felt

in a concrete way by the challenging parties.” Abbott

Labs. v. Gardner, 387 U.S. 136, 148-149 (1967). Deter-

mining whether an agency action is ripe for judicial re

view generally requires a court to evaluate the fitness of

the issues for judicial decision and the hardship to the

parties of withholding court consideration. /d. at

148-152. Agency action may ve final without being ripe.

See National Park Hospitality Ass‘nv. Department of

the Interror, 5388 U.S. 803, 812 (2008).

see. eog., Nowthern Pines Assocs hha (roldmerer vo United Ntat

O12 F.2d 713. 715 717 (4th Cir. 1990); Hoffman Group, Ine. v. EPA, 902

BFP 567, 564 7th Cir. 1990): see also Pet. App b7-BS

16

As the district court explained (Pet. App. B6-B7), the

Corps’ jurisdictional determination is not ripe for judi-

cial review. The jurisdictional determination noted that

petitioner may apply for a permit if it wishes to dis-

charge fill material in developing its property. /d. at A4.

Petitioner has not yet applied for such a permit, how-

ever, nor has it been subject to any enforcement action.

Depending on the nature and circumstances of the pro-

posed discharges, it is entirely possible that petitioner

could receive a permit entitling it to develop its property

without restrictions or that no enforcement action would

be initiated. Those uncertainties, in addition to the pos-

sibility that changes to the property’s condition might

effect its status under the CWA (see note 38, supra),

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ripe.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN

Solicitor General

JOHN C. CRUDEN

Acting Assistant Attorney

General

AARON P. AVILA

Attorrce if

MAY 2009