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

FILED

No. 08-1052 MAR 2 3 2009

OFFICE OF THE CLERK

| SUPREME COURT, U.S.

Bn The

Supreme Court of the Gnited States

¢

FAIRBANKS NORTH STAR BOROUGH,

Petitioner,

4

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

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BRIEF OF THE STATE OF ALASKA AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

¢

RICHARD SVOBODNY

Acting Attorney General

JOANNE GRACE

Counsel of Record

CAMERON LEONARD

Assistant Attorneys General

STATE OF ALASKA

DEPARTMENT OF LAW

P.O. Box 110300

Juneau, Alaska 99811-0300

(907) 465-3600

Counsel for Amicus Curiae the State of Alaska

TABLE OF CONTENTS

Page

Dees COP AUS TIORE FLD ..... 0200. ccercseccecsecsecsccsnss i

INTEREST OF AMICUS CURIAE. ..................0006 1

SUMMARY OF ARGUMENT ..........cccccsccscessoseees 3

ARGUMENT......... PRG AST IEE ROO OO eet a a 5

I. THE CORPS’ JURISDICTIONAL DECI-

IT.

SION CONSTITUTES FINAL AGENCY

ACTION BECAUSE THE CLEAN WA-

TER ACT ALONE IS TOO VAGUE TO

IMPOSE RECOGNIZABLE LEGAL OB-

LIGATIONS ON A LANDOWNER WHO

WISHES TO DEVELOP PROPERTY........

A. For Some Property, the Legal Obliga-

tions of the Clean Water Act Depend

Upon the Agency’s Interpretation of

the Statute, as Applied to a Particu-

POR PO Oe GE CRIN oo se vnsciekcvsccccenevccescavcss

B. A Decision that an Applicant Must

Obtain a Permit, Made by the Agency

that Enforces the Permit Require-

ment, Determines the Applicant’s Le-

MOE SPUR IIUED ok bis dre sdwen sane cda cae vetusdes -

EVEN IF THE NINTH CIRCUIT WERE

CORRECT THAT THE JURISDIC-

TIONAL DETERMINATION IS NOT A

FINAL AGENCY ACTION, THE COURT

SHOULD FIND IT REVIEWABLE UN-

DER THE COLLATERAL ORDER DOC-

TRINE........

ee Ie, Soc cadwadavassepidascinei esas nivencdcvontys ss

13

16

24

TABLE OF AUTHORITIES

CASES

Abney v. United States, 431 U.S. 651 (1977)

AT&T v. EEOC, 270 F.3d 973 (D.C. Cir. 2001)

Bell v. New Jersey and Pennsylvania, 461 U.S.

CE BG DS 17

Bennett v. Spear, 520 U.S. 154 (1997) a. 4S, 7, 12

Ciba-Geigy Corp. v. EPA, 801 F.2d 430 (D.C.

Car, LE ra A itenrcrvnccsssereeccescceee 19

City of San Diego v. Whitman, 242 F.3d 1097

(9th Cir. 2001)

Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541 (1949)

Coopers & Lybrand v. Livesay, 437 U.S. 463

GS rp -3 Rar 17, 18, 19

Fairbanks North Star Borough v. U.S. Army

Corps of Engineers, 543 F.3d 586 (9th Cir.

passim

Floridian Clean Water Network, Inc. v. Grossk

ruger, 587 F.Supp.2d 1236 (M.D. Fla. 2008)

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

Johnson v. Jones, 515 U.S. 304 (1995).......000000.... L8, 20

Marks v. U.S., 430 U.S. 188 (1977) cas css nes

Mitchell v. Forsyth, 472 U.S. 511 (1985)........ \ ae 19

National Mitigation Banking Ass'n v. U.S

Corps of Engineers, 2007 WL 495245 (N.D.

Il. 2007) eee ee, eo

TABLE OF AUTHORITIES — Continued

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

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

Sierra Club v. U.S. Army Corps of Engineers,

450 F.Supp.2d 503 (D.N.J. 2006), vacated,

277 FOC. ADE. LTO (Sr Cll, BOOS) vc vcscssecesssscessescoves 23

Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261

(9th Cir. 1990)

U.S. v. Cundiff, 55 F.3d 200 (6th Cir. 2009) ................ 9

U.S. v. Deaton, 332 F.3d 698 (4th Cir. 2003)

U.S. v. Riverside Bayview Homes, 474 U.S. 121

(1985)

U.S. v. Robison, 521 F.3d 1319 (11th Cir. 2008).......... 9

CONSTITUTION, STATUTES, AND REGULATIONS

Alaska Statehood Act, § 6, Pub. L. No. 85-508,

Fae uo os sacs acaeteees chad keene oe 1

Clean Water Act, 33 U.S.C. § 1251 et segq.......... passim

5 U.S.C. § 704

28 U.S.C. §

33 U.S.C. §

33 U.S.C. §

30 US... §

oo U.8.C

oA. §

hoo. §

TABLE OF AUTHORITIES — Continued

OTHER MATERIALS

Alaska Environmental Procedures Manual,

Alaska Department of Transportation and

Public Facilities (2002)

Brief of Appellee-Intervenor, Alaska Center for

the Environment v. Secretary, U.S. Dept. of

the Army, No. 03-35074, 2003 WL 22724132

COREE Gar I Be Ne os ic vcessiercs even va venvecsnansaes 22, 23

Jurisdictional Determinations, Corps Regula-

tory Guidance Letter 08-02 (June 26, 2008)..........18

Sunding & Zilberman, The Economics of Envi-

ronmental Regulation by Licensing: An As-

sessment of Recent Changes to the Wetland

Permitting Process, 42 Nat. Resources J. 59

U.S. Fish and Wildlife Service, Status of

Alaska Wetlands (1994)

TABLE OF AUTHORITIES — Continued

Page

U.S. General Accounting Office, Report to the

Chairman, Subcommittee on Energy Policy,

Natural Resources and Regulating Affairs,

Committee on Government Reform, House of

Representatives, Waters and Wetlands: Corps

of Engineers Needs to Evaluate Its Districi

Office Practices in Determining Jurisdiction,

GAO-04-297 (Feb. 2004) ...............2ccee cece eee: ..4%, 32

Wetlands Research Program Technical Report

Y-87-1 (Jan. 1987)

INTEREST OF AMICUS CURIAE’

The State of Alaska has a keen interest in this

case. It seeks to protect its traditional state authority

to plan the development and use of its land and water

resources, in the face of questionable assertions of

authority from an often overbearing federal agency.

See 33 U.S.C. § 1251(b). Aleska also has an interest

as owner of over 100 million acres of land, granted by

Congress at statehood to help the State finance its

new government. See Alaska Statehood Act, § 6, Pub.

L. No. 85-508, 72 Stat. 339 (1958). Over 43% of the

land in Alaska, comprising some 174 million acres, is

classified as wetlands by the federal government.

U.S. Fish and Wildlife Service, Status of Alaska

Wetlands 19 (1994), available at http://www.fws.gov/

wetlands/_documents/gSandT/StateRegional Reports/

StatusAlaskaWetlands.pdf. On Alaska’s North Slope

Coastal Plain, approximately 83% of the surface area

is classified as wetlands. /d. at 20. This area is frozen

most of the year and underlain by permafrost year-

round. In addition, Alaska has innumerable other

surface waters such as lakes and rivers. As this Court

has acknowledged, more than half of the surface area

of Alaska could potentially qualify as “waters of the

United States” subject to federal regulation under the

Clean Water Act. Rapanos v. United States, 547 U.S.

715, 722 (2006): see also U.S. Fish and Wildlife Ser

vice, supra, at 18

' The state notified the borough ten days prior to the due

date of this brief of the intention to file. The state notified the

attorney for the Corps on March 20, 2009

2

Because of the prevalence of wetlands and other

surface waters, many, if not most large-scale projects

in Alaska disturb wetlands or surface waters. Virtu-

ally every significant public project in Alaska —

whether for roads, airports, pipelines, sewers, electri-

val transmission lines, correctional facilities or court-

houses — potentially impacts “waters of the United

States,” thus triggering a federal permitting process

under the Clean Water Act.” That permitting process

requires a significant investment of time and money.

_Seven years ago, the average applicant for an indi-

vidual Section 404 permit spent $271,596 completing

the permit process, not including costs of mitigation

or design changes. Rapanos, 547 U.S. at 721 (citing

Sunding & Zilberman, The Economics of Environ-

mental Regulation by Licensing: An Assessment of

Recent Changes to the Wetland Permitting Process, 42

Nat. Resources J. 59, 74-76 (2002)). Some applicants

spent as much as $1,530,000, again exclusive of

mitigation or design change costs. Sunding & Zilber-

man, supra, at 74 n.67. Large public projects in

Alaska tend toward, and sometimes exceed, the high

end of this scale.

“Over 90 percent of highway projects in Alaska affect

protected resources (e.g., wetlands, anadromous fish streams, or

essential fish habitat).” Alaska Environmental Procedures

Manual, Alaska Department of ‘Transportation and Public

Facilities at 1-5 (2002), available at http://www.dot.state.ak.us

stwddes/desenviron/assets/pdt/manualchO 1. pdf

Because so much of Alaska is potentially subject

to the authority of the Army Corps of Engineers

under the Clean Water Act, the State is concerned

about the process by which the Corps’ jurisdictional

determinations are made and reviewed. The need for

immediate court review of jurisdictional determina-

tions is heightened by the legal uncertainty surround-

ing the scope of “waters of the United States” in the

wake of Rapanos. As discussed in the argument

section of this brief, to delay judicial review of the

Corps’ jurisdictional determination until the permit-

ting process is complete may effectively deny the

right to review, and certainly denies the opportunity

for meaningful relief if the Corps wrongfully asserts

jurisdiction. Timely judicial review of jurisdictional

determinations is critical for Alaska and Alaskans

because of the prevalence of potential wetlands in the

state, the likelihood of controversial jurisdictional

determinations, and the burdens of the permitting

process. Alaska therefore urges the Court to hear this

case and to ensure meaningful judicial review of the

Corps’ assertion of jurisdiction over the land in this

state.

SUMMARY OF ARGUMENT

A jurisdictional determination by the Corps of

Engineers ts final agency action immediately review-

able by a court. The Ninth Circuit incorrectly held

that the jurisdictional determination in this case did

not meet the finality test of Bennett v. Spear, 520 U.S

154 (1997), because in its view the decision was not

an “action by which ‘rights or obligations have been

determined, or from which ‘legal consequences will

flow.’” See id. at 178. While the Clean Water Act

requires a Section 404 permit to discharge “dredged

or fill” material into “waters of the United States,” 33

U.S.C. § 1344, neither the statute nor the Corps’

regulations clearly delineate what lands might be

sufficiently saturated to fall within the scope of the

statute. Only the Corps’ jurisdictiona! determinations

definitively impose the Clean Water Act’s require-

ments on a landowner. Therefore, the agency’s deci-

sion is what ultimately determines the obligations of

the applicant.

Alternatively, if the Corps’ jurisdictional deter-

mination is not final agency action, it should be

immediately reviewable under the collateral order

doctrine. The jurisdictional determination is_ the

Corps’ conclusive decision on the disputed question; it

resolves an important issue separate from the merits

of the action; and the applicant’s interest are no

longer capable of vindication after the costly and

difficult Section 404 permitting process is complete

_-_ —_ —__ 9 —_ - —_——_—_————_-

ARGUMENT

THE CORPS’ JURISDICTIONAL DECISION

CONSTITUTES FINAL AGENCY ACTION

BECAUSE THE CLEAN WATER ACT

ALONE IS TOO VAGUE TO IMPOSE REC-

OGNIZABLE LEGAL OBLIGATIONS ON A

LANDOWNER WHO WISHES TO DEVELOP

PROPERTY.

The parcel of land that Fairbanks wishes to

develop for recreation, with playgrounds, athletic

fields, concession stands, and parking lots, does not

contain anything recognizable as “weters of the

United States.” See Fairbanks North Star Borough v.

U.S. Army Corps of Engineers, 543 F.3d 586, 589 (9th

Cir. 2008). Fairbanks does not believe that the parcel

contains “waters of the United States” requiring

Section 404 permits because the land is not “period:

cally inundated,” does not have “saturated soils

during the growing season,” and 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.” /d. at 590. But because the Corp:

interprets the Clean Water Act as broadly as possible,

to extend to the full reach of the Commerce Clause,

ee Rapanos 47 US. at 724 (citing 42 Fed. Reg

37144 n.2 (1977)), Fairbanks prudently asked for a

jurisdictional determination § before beginning the

project. Fairbanks North Star Borough, 543 F.3d at

58Y. Fairbanks asked the Corps to determine whether

could proceed with this project without permit:

asked that. if the pal el contained “water ot the

6

United States” subject to the Clean Water Act, the

Corps provide a drawing depicting the “wetlands in

relation to the lot boundaries.” /d. In response, the

Corps issued a jurisdictional determination finding

that “the entire parcel ... contains waters of the

United States ... under our regulatory jurisdiction.”

Id. The Corps’ letter stated that under the Clean

Water Act, the borough must obtain a permit before it

could place dredged or fill material on the land. /d. at

590.

A Ninth Circuit panel found that the Corps’

jurisdictional determination did not constitute final

agency action under the Administrative Procedures

Act, 5 U.S.C. § 704, holding that it did not meet the

second prong of this Court’s test set forth in Bennett,

520 U.S. 154. While the panel held that the Corps’

jurisdictional determination “announces the Corps’

considered, definite and firm position about the

presence of jurisdictional wetlands on Fairbanks’

property,” Fairbanks North Star Borough, 543 F.3d at

193, it found that it was not an “action by which

‘rights or obligations have been determined, or from

which ‘legal consequences will flow,” td (quoting

Bennett, 520 U.S. at 178) According to the pa iel, the

jurisdictional dvuvermination was merely the Corps’

‘ssion of views’ of “what the law requires,’ and

Fairvanks would “face hability only for noncomph

ance with the CWA's underlying statutory command

isagreement with the Corp jurisdictional

determination t. at O! ting tah Vallev Med

~

AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001)).

The panel found that the jurisdictional determination

had only “practical” consequences, because regardless

of the Corps’ view, the parcel was either “waters of

the United States” for purposes of the Clean Water

Act, or it was not. See id. at 595. Therefore, according

to the panel, the Corps’ opinion did not “alter the

physical reality or the legal standards used to assess

that reality,” and was of no more consequence than “a

report by a private wetlands consultant informing

Fairbanks that its property contained wetlands.” /d.

This analysis parses all meaning out of the

second Bennett prong. The Corps’ jurisdictional

determination is more than a mere opinion; it is that

agency's legal conclusion that it has jurisdiction over

a particular parcel of land — a jurisdiction that is not

apparent from the terms of the statute, the imple

menting regulations, or examination of the parcel.

And legal consequences for the applicant do flow from

the Corps’ assertion of jurisdiction. The applicant is

required to obtain a permit to discharge into “waters

of the United States” or face serious civil and criminal

penalties. See 33 U.S.C. § 13819(b)-(c). In cases such as

this, where the land does not clearly contain such

waters, the statutory requirement depends on the

Corps’ interpretation of the Act. The Corps’ jurisdic

tional decision makes the Clean Water Act’s statutory

commands applicable to the particular parcel, and

therefore it effectuates the developer's obligation to

follow the Act

8

A. For Some Property, the Legal Obliga-

tions of the Clean Water Act Depend

Upon the Agency’s Interpretation of

the Statute, as Applied to a Particular

Parcel of Land.

For land such as Fairbanks’ proposed park, the

Clean Water Act’s legal obligations take effect only in

concert with the agency’s interpretation. The Ninth

Circuit’s concept that the Corps’ jurisdictional deter-

mination has no legal consequences because it exists

independently from the obligations of the Clean

Ae : cERE t fs, 37s we

eh ist f

Water enzé in the context of Section

404 permits. At least in wetlands cases such as this,

the lands to which the Clean Water Act applies —

those containing “waters of the United States” — are

often identifiable as such only through the Corps’

analysis. For example, the language of the statute

does not provide clear guidance when applied to the

frozen lands, in this case, which are not obviously

included in a law intended “to restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). The magnitude

of the Corps’ interpretative authority is heightened by

the lack of direction from the Court “on precisely how

to read Congress’ limits on the reach of the Clean

Water Act,” causing regulated entities to “feel their

way on a case-by-case basis.” Rapanos, 547 U.S

é

758 (Roberts, C.J., concurring). For cases such as

In addition to the vagueness of the Clean Water Act

courts in the post-Rapanos cra face the added difficulty of

‘Continued on following page)

Te ere yee, aoe eet aS ear ae

9

this, the statutory permitting requirements have a

recognizable legal effect only if and when the Corps

decides that particular parcels of property contain the

vaguely-defined “waters of the United States.”

The statutory language is general. It provides

that “any addition of any pollutant to navigable

waters from any point source” “by any person shall be

unlawful.” 33 U.S.C. §§ 1311(a), 1862(12). “Pollutant”

includes not only traditional contaminants, but also

solids such | as “dredged spoil, ... reck, sand, land!

{ ge eter Gg?

ceilar Girt.” 3 1u5n2G). “Navigable waters are detined

as “the wasn of the Uni:ed States, including the

territorial seas.” § 1362(7). While the statutory lan-

guage clearly prohibits discharging pollutants into

navigable lakes, rivers, and the territorial sea, its

application to solid land is less obvious and mani-

festly counterintuitive. Cf’ Rapanos, 547 U.S. at 734

(plurality opinion) (finding that, as to specific exam-

ples of Corps’ determinations, “[t]he plain language of

the [Clean Water Act] simply does not authorize this

‘Land Is Waters’ approach to federal jurisdiction.”).

The Corps’ regulations also fail to offer clear

guidance to the question of whether a particular

parcel of land falls within the scope of the Clean

deciding which opinion in that case to follow. See, e.g., U.S. v

Cundiff, 55 F.3d 200, 208 (6th Cir. 2009, (discussing difficulty in

determining which Rapanos opinion relied on the “narrowest

grounds, the traditionai test for following plurality opinions

under Marks v. U.S., 430 U.S. 188 (1977)); and U.S. cv. Robison,

521 F.3d 1319 (11th Cir. 2008) (same)

10

Water Act. They interpret the “waters of the United

States” to include “mudflats, sandflats, wetlands,

sloughs, prairie potholes, wet meadows, playa lakes,

or natural ponds, the use, degredation or destruction

of which could affect interstate or foreign commerce.”

33 C.F.R. § 328.3(a)(3).

And whether a parcel contains wetlands is not

self-evident. Wetlands are defined as “those areas

that are inundated or aeturaisa by Surface of zr und

water at a frequency ene duration sufficient to sup-

port, and that under normal circumstances do sup-

port, a prevalence of vegetation typically adapted for

life in saturated soil conditions.” 33 C.F.R. § 328.3(b).

The Corps’ Wetlands Delineation Manual, including

over 100 pages of technical guidance for Corps offi-

cers, interprets this definition of wetlands to require:

(1) prevalence of plant species typically adapted to

saturated soil conditions, determined in accordance

with the United States Fish and Wildlife Service’s

National List of Plant Species that Occur in Wet-

lands; (2) hydric soil, meaning soil that 1s saturated,

flooded, or ponded for sufficient time during the

growing season to become anaerobic, or lacking in

oxygen, in the upper part; and (3) wetland hydrology,

a term generally requiring continuous inundation or

' : / , -

saturation to the surface during at least five percent

of the growing season in most years. See, Wetlands

Research Program Technical Report Y-87-1 (on-line

edition), pp. 12-34 (Jan. 1987), available at http://el.

erdc usace.army.mil/elpubs/pdf/wlman8s7.pdf.

11

These indefinite guidelines effectively give the

Corps authority to decide, on a case-by-case basis,

who must follow the Act’s requirements. “| T]he defini-

tions [the Corps uses] to make jurisdictional determi-

nations are deliberately left ‘vague.’” Rapanos, 547

U.S. at 727 (citing U.S. General Accounting Office,

Report to the Chairman, Subcommittee on Energy

sentatives, Waters and Wetlands: Corps of Engineers

Needs to Evaluate Its District Office Practices in

Determining Jurisdiction, GAQO-04-297, pp. 20-22

(Feb. 2004)). The regulations “leave room for inter-

pretation by the Corps districts when considering

jurisdiction over, for example ... adjacent wetlands.”

GAO Report at 2. These ambiguous standards require

subjective judgment calls by the Corps about “topog-

raphic features, geological and soil characteristics,

fauna and flora, and other environmental factors” to

determine whether property contains “wetlands” that

should be considered “waters of the United States.”

See id. at 26. In general, “Corps’ staff conduct juris-

dictional determinations by considering a range of

factors, and they often view each factor’s importance

within the context of the actual site of a proposed

project.” 7d. at 7. The Corps has acknowledged that,

“given the complexity of nature and the need for some

degree of flexibility within and among districts,”

12

“nationwide consistency in making jurisdictional

. ° ° ¢¢ . . 4

determinations” is “not possible to achieve.” Jd. at 26.

The Corps’ subjective judgments and ultimate

decision to apply the law to a particular parcel inex-

tricably ties its jurisdictional determination ta the

leval obligations imposed by the Clean Water Act. In

these cases the statutory term “waters of the United

States” has no effective meaning or application inde-

pendent of the Corps’ determination. While the ui-

derlying legal obligation to acquire permits for

discharging into wetlands arises from the statute, the

Act itself is so vague as to what constitutes “waters of

the United States,” that in effect, it does not specify

to whom that legal obligation applies. When the

statute’s applicability is unrecognizable to a land-

owner without a declaration from the Corps, the

statute has legal force only through that declaration.

For these lands, the jurisdictional determination 1s

an action by which “obligations [of the landowner]

have been determined,” and from which “legal conse-

quences will flow.” Bennett, 520 U.S. at 178.

The Ninth Circuit’s proverbial “private wetlands

consultant,” in contrast, could only make an educated

guess about what the Corps would conclude from any

particular combination of physical factors; he or she

Under the Corps’ regulations, a final jurisdictional

determination issued for a parcel of land has no precedential

effect. See 33 C.F.R. § 331.7(g). Each jurisdictional determina-

tion is left to the Corps’ judgment. regardless of its past prac-

tices

ie

wu

would certainly not find a clear answer in the statute

or regulations. The Corps’ jurisdictional determina-

tion and the opinion of the private consultant differ in

two other significant ways as well: a court will give

daference to the agency's interpretation of whether a

parcel contains “waters of the United States,” and the

Corps enforces the permitting requirement of 33

U.S.C. § 1344(a) for discharges into these waters.

B. A Decision that an Applicant Must Ob-

tain a Permit, Made by the Agency that

Enforces the Permit Requirement, De-

termines the Applicant’s Legal Obliga-

cions.

The decision by the Corps that a parcel of land

contains wetlands is a determination by the enforce-

ment agency that che applicant must obtain permits

to develop the land. Because the agency enforces the

law according to its own analysis, the Corps’ jurisdic-

tional determination does not “simply ‘remind ]’

affected parties of existing duties,” as the Ninth

Circuit panel found. Fairbanks North Star Borough,

543 F.3d at 595 n.10.

Ratner, it 1s an agency decision to which a re-

viewing court will defer. As discussed above, the

Corps’ determination of the existence of wetlands

requires it to consider a multitude of factors. The

Corps must make judgments as to how wet (or ice-

lade:.) a parcel’s soil must be, and for how long, in

deciding whether it should be considered “wetlands.”

14

Agencies given authority under statutes “such as the

Clean Water Act are afforded generous leeway by the

? &

courts in interpreting the statute they are entrusted

to administer.” Rapanos, 547 U.S. at 758. Because of

the individual nature of any given parcel of land,

Congress left it to the Corps to determine if the

landowner is subject to the Act, and because soil,

plant, and water analysis is not -vithin the expertise

of courts, they are likely to respect the agency deci-

sion. See, e.g., U.S. v. Deaton, 332 F.3d 698, 713 (4th

Cir. 2003) (deferring to the Corps’ interpretation,

since it “deals in a complex scientific field, wetlands

ecology and hydrology.”). This deference gives signifi-

cant legal weight to the Corps’ assertion of jurisdic-

tion.

And the Corps is the agency charged with enforc-

ing the Section 404 permitting requirements. 33

U.S.C. § 13844(a). For this reason alone, the Ninth

Circuit 1s wrong in finding that the Corps’ jurisdic-

tional determination has no more legal effect on the

applicant's obligation to get a permit than would a

report by a private consultant. See Fairbanks North

Star Borough, 543 F.3d at 595. Nor does the Corps’

analysis simply “place[ Fairbanks] on notice that

construction might require a Section 404 permit,” as

the Ninth Circuit suggested. Jd. Instead, the Corps’

decision asserts jurisdiction over the land based on

its analysis of the “physical realities,” thereby alter-

ing the legal regime to which the landowner is

subject. The Corps demands compliance, as evi-

denced by its letter informing Fairbanks that, based

on the jurisdictional determination, the boreugh

Must acquire Geciion 404 permits to proceed with

its project. See id. at 590. The Corps’ assertion of

jurisdiction becomes part of the permanent record

of the parcel, and exposes applicants such as Fair-

banks to sanctions if they do not honor it. See, e.g.,

Rapanos, 547 U.S. at 720 (“[Flor backfilling his own

wet fields, Mr. Rapanos faced 63 months in prison

and hundreds of thousands of dollars in crim'nal and

civil fines.”).

The Ninth Circuit panel parsed this point far too

finely, finding that “[t]he approved jurisdictional

determination did not augment the Corps’ legal

authority to pursue enforcement action,” since “Fair-

banks’ legal obligations — including the obligation to

pursue a Section 404 dredge and fill material dis-

charge permit — have always arisen solely on account

of the CWA.” Fairbanks North Star Borough, 543 F.3d

at 596. That reasoning assumes that the scope of

lands containing “waters of the United States” neces-

sanily has meaning apart from the Corps’ interpreta-

tion. This assumption 1s simply not true for wetlands,

which at best fail on the margins of the Clean Water

Act. See U.S. v. Riverside Bayview Homes, 474 U.S.

121, 131 (1985) (stating that the phrase “water of the

United States” in the Clean Water Act refers primar-

ily to “rivers, streams, and other hydrographic fea-

tures more conventionally identifiable as ‘waters’”

than the wetlands adjacent to such features). It is

even less true for purported wetlands underlain with

permafrost, as is much of the land in Alaska. U.S

16

Fish and Wildlife Service, supra, at 19-20. For these

lands, the jurisdictional determination did more than

“augment the Corps’ legal authority to pursue en-

forcement action,” Fairbanks North Star Borough,

543 F.3d at 596; the jurisdictional cetermination

itself made the Act enforceable against Fairbanks,

which would be subject to criminal, civil, and admin-

istrative penalties should it fail to comply. See 33

U.S.C. § 1319(b)-(c), (g). It was that decision, not the

Clean Water Act alone, that made Fairbanks legally

obligated to begin the process during which “(t]he

average applicant for an individual permit [spent]

788 days and $271,596 in 2002.” Rapanos, 547 U.S. at

721 (citing Sunding & Zilberman, supra, at 74-86).

il. EVEN IF THE NINTH CIRCUIT WERE

CORRECT THAT THE JURISDICTIONAL

DETERMINATION IS NOT A_ FINAL

AGENCY ACTION, THE COURT SHOULD

FIND IT REVIEWABLE UNDER THE COL -

LATERAL ORDER DOCTRINE.

The Court should accept and decide this case on

the alternative ground that a court may immediately

review a jurisdictional determination under the

collateral order doctrine. Delaying the right to court

review until after the permitting is complete requires

the applicant to submit to a process so difficult,

expensive, and time-consuming that an after-the-fact

court challenge loses its purpose.

This Court adopted the collateral order doctrine

in Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541, 546 (1949), describing a “small class” of orders

that do not end the proceedings below but that

should, for systemic reasons, be treated as final and

immediately appealable. While the Court developed

the collateral order doctrine to provide relief from

overly strict application of the requirement that

appellate courts review only final decisions of district

courts, see 28 U.S.C. § 1291, the Court has suggested

that the doctrine should also apply to an order that

impacts but does not end an administrative proceed-

ing. See, e.g., FTC v. Standard Oil Co., 449 U.S. 232,

246 (1980) (applying the collateral order doctrine to

determine the reviewability of an agency order); see

also Bell v. New Jersey and Pennsylvania, 461 U.S.

773, 778 (1983) (“[A/t least in the absence of an ap-

pealable collateral order ... the federal courts may

exercise jurisdiction only over a final order of the

Department [of Education].”) (emphasis added;

citations omitted).

In Cohen, the Court adopted a practical construc-

tion of finality, holding that under limited circum

stances an order that does not actually end litigation

may be reviewed as a “final” order. 337 U.S. at 546.

To be immediately appealable, an order must meet

three criteria: it must “conclusively determine the

disputed quéstion, resolve an important issue com

pletely separate from the merits of the action, and be

effectively unreviewable on appeal from a fina! judg-

ment.” Coopers & Lybrand v. Livesay, 437 U.S. 4638,

468 (1978). These requirements “help qualify for

immediate appeal classes of orders in which the

considerations that favor immediate appeals seem

comparatively strong and those that disfavor such

appeals seem comparatively weak.” Johnson v. Jones,

515 U.S. 304, 311 (1995).

The Corps’ decision to assert jurisdiction over a

parcel of land meets these three requirements and

therefore should be considered a final order subject to

immediate review. First, the order “conclusively

determines the disputed question.” See Coopers &

Lybrand, 437 U.S. at 468. The Corps has established

a formal procedure for affected parties to solicit its

official and final position about the existence and

extent of Clean Water Act regulatory jurisdiction

over a particular parcel. See 33 C.F.R. Part 331. “An

approved |jurisdictional determination] is an official

Corps determination that jurisdictional |waters

under the Clean Water Act] are either present or

absent on a particular site.” Jurisdictional Determi-

nations, Corps Regulatory Guidance Letter 08-02, at 1

(June 26, 2008), available at http://newsletters.

wetlandstudies.com/docUpload/RGLO8021.pdf. After

the district engineer’s approved jurisdictional deter-

mination has been upheld by the division engineer, no

further administrative appeal is possible. See 33

C.F.R. § 331.9. In this case, the Ninth Circuit held

that “an approved jurisdictional determination up

held in the Corps’ administrative appeal process

‘mark[s] the consummation of the agency’s decision-

making process’ for determining whether the Corps

conceives a property as subject to CWA jurisdiction.”

Fairbanks North Star Borough, 543 F.3d at 591. The

19

jurisdictional determination the Corps issued in this

case “is ‘devoid of any suggestion that it might be

subject to subsequent revision’ or ‘further agency

consideration or possible modification.’” Jd. (citing

City of San Diego v. Whitman, 242 F.3d 1097, 1102

(9th Cir. 2001) and quoting Ontario v, EPA, 912 F.2d

1525, 1532 (D.C. Cir. 1990) and Ciba-Geigy Corp. v.

EPA, 801 F.2d 430, 436-47 (D.C. Cir. 1986))

The jurisdictional determination also meets the

second requirement for application of the collateral

order doctrine, because it resolves an important issue

that is separate from the merits of the action. See

Coopers & Lybrand, 437 U.S. at 468. The question of

whether the Corps has authority under the Clean

Water Act to assert jurisdiction over a parcel of land

is both important and entirely separate from the

merits of whatever permitting requirements the

Corps may impose on the landowner proposing to

develop the land

Finally, the jurisdictional determination is “effec-

tively unreviewable on appeal from a final judgment

Id. The use of the word “effectively” recognizes that

en order may be technically subject to review at the

end of a case, but that the appealing party’s interests

may not be capable of vindication at that late date

See, ew., Mitchell v. Forsyth, 472 U.S. 511, 526-27

(1985) (discussing the need for immediate review of

interlocutory orders refusing to grant qualified

immunity); Abney v. United States, 431 U.S. 651,

660-62 (1977) (discussing the need for immediate

review of interlocutory orders rejecting claims of

20

double jeopardy). “The requirement that the issue

underlying the order be ‘effectively unreviewable’

later on... means that failure to renew immediately

may well cause significant harm.” Johnson, 515 U.S

at 311

In the context of the Corps’ jurisdictional deter

minations, the lack of immediate review subjects the

landowner to the authority and the accompanying

procedural demands of a federal agency. Before the

applicant can contest the Corps’ assertion of jurisdic

tion, it must first slog through a permitting process

that on average takes over two years, but can take

much longer, see Sunding & Zilberman, supra, at 75

76, and that requires patience, diplomacy, and a deep

pocket to complete. Even preparing the application is

arduous; for example, the Section 404 permit applica

tion of the City of Chicago for an airport project was

“a four-volume document that [was] hundreds

pares long 7 National Mitigation Banking

U).S. Corps of Engineers, 2007 WL 495245 at

Ill. 2007)

After the application is prepared, federal

Late regulatory agencies must certify approve

least agree not to contest. the Section 404 permit

See, eg., 338 USC. § 1344(c) (giving U.S. Environ

mental Protection Agency veto power); 33 U

~ 1344(m) (granting U.S. Fish & Wildlife

comment mgnt):

}

mency certilica ) h) cory it ed Wilh concurrent

permitting under a host of other federal, state, and

local laws,’ multi-pronged discussions often lead to

conditions imposed on the applicant through the

Section 404 permit. 33 C.FLR. § 325.4 (codifying Corps’

authority to impose conditions). Permit applicants

particularly public applicants must make public

commitments to agencies and citizen groups concern

ing mitigation measures, must seek approvals from

agencies and sometimes from local legislative bodies,

and must pay for studies, designs, and mitigation

The mitigation requirement alone can be complex

and time-intensive. The compensatory mitigation

review, which is embedded within the Section 404

permitting regime, makes “|plermit applicants

responsible for proposing an appropnate compensa-

tory mitigation option to offset unavoidable impacts.”

The wetlands development process often begins years

before any design is honed to the point that a formal application

for a wetlands permit can be filed. Through the National Envi

ronmental Policy Act, the public, agenci and governments,

including the Corps of Enyineers, review the lands the Corps

is jurisdictional, study practicable alternatives, and work

out mitigation measures. The impacts ot placing fill can require

ipproval and commitments to mitigate under the

Coastal Zone Management Act, Clean Air Act, Marine Mammal

Protection Act, Endangered Species Act, Migratory Bird Treaty

Act and others, with each federal, state, and local act adding its

own layer ol procedure and ipproval 9ce, C.2 11st appends (1 LO

Alaska Interagency Consultation and Coordination Agreement

for FHWA/DOTEPF Tran portation Project avaiable at http

www dot state ak us/stwddes/desenviron asset /padt/resources/ akicca

pat nowiny apreement Imong in irOncn

permit

22

33 C.F.R. § 332.3(a)(1). The Corps will agree to spe-

cific mitigation only when the district engineer deems

it sufficient to compensate for unavoidable impacts to

“waters of the United States.” Jd. Many variables are

considered in determining the appropriate type,

quantity and quality of mitigation. For example, the

Corps would not grant Alaska a Section 404 permit

for an airport project unless the airport compensated

for the loss of wetlands by agreeing to preserve and

rehabilitate an undeveloped portion of an entirely

separate bog located four miles away. See Brief of

Appellee-Intervenor at 20, Alaska Center for the

Environment v. Secretary, U.S. Dept. of the Army, No.

03-35074, 2003 WL 22724132 (9th Cir. May 10, 2003).

The airport commissioned studies of this bog’s hydrol-

ogy and the feasibility of rehydration, and conducted

another study to see whether the rehabilitation would

pose a hazard to aviation. [d. at 20-21. The Corps

then analyzed the functions and values of both the

airport bogs and the mitigation bog to assure an

appropriate level of compensation. /d. at 21-22. Three

airport bog areas were divided into micro-environments

for analysis; one was divided into 123 separate poly-

gons representing micro-environments as small! as .1

acre, so that the agencies could compare the biologic

functions of the flarks (small depressions), associated

stangs (small ridges), and vegetative communities

among the bogs. /d. at 22. The airport was required to

conduct this field work to study and compare each

micro-environment within the proposed fill area with

the area proposed for compensatory mitigation, in

23

order to come to agreement with the Corps on the

conditions for a Section 404 permit. Jd.

This is only a moderate example of the work that

mitigation can require; it can also require that the

landowner trade or purchase other lands as compen-

sation. See, e.g., Floridian Clean Water Network, Inc.

v. Grosskruger, 587 F. Supp.2d 1236, 1239 (M.D. Fla.

2008) (discussing Corps’ requirement that an airport

authority arrange to have approximately 10,000 acres

of adjacent Jand put under conservation easements in

order to fill 1,530 acres of land); National Mitigation

Banking Ass’n, 2007 WL 495245 at *1 (discussing

Corps’ requirement that, as a condition to a Section

404 permit to fill 97.1 acres of wetlands, the City of

Chicago pay approximately $4.5 million to a mitiga-

tion bank provider in exchange for 62 acres of mitiga-

tion credits and pay $26 million to an in-lieu fee

provider that agreed to undertake an additional 280

credits of mitigation); Sierra Club v. U.S. Army Corps

of Engineers, 450 F.Supp.2d 503, 513 (D.N.J. 2006)

(discussing the condition on a Section 404 permit to

fill 7.69 acres of wetlands that developer enhance

15.38 acres of wetlands offsite and preserve a tract

“containing hundreds of acres of wetlands, by means

of causing a conveyance in fee te [a conservation

trust].”), vacated, 277 Fed.Appx. 170 (3rd Cir. 2008).

Having made the public commitments, obtained

the approvals and votes, and expended the funds,

the permit applicant has already suffered the conse-

quences of the Corps’ jurisdictional determination.

Even if the applicant believes deeply that the

24

jurisdictional determination was improper, challeng-

ing the agency’s underlying legal authority cannot

vindicate the applicant’s interests once it has spent

the time, money and political capital to get through

the permitting process. The Corps has already flexed

its regulatory muscle — possibly without authority —

and the landowner’s bundle of property interest

sticks has been compromised. By that point, the

jurisdictional determination has become “effectively

unreviewable.”

In order to prevent this result, the collateral

order doctrine should apply to allow immediate court

review of a jurisdictional determination by the Corps.

e

CONCLUSION

For the foregoing reasons, the Court should grant

the petition.

Respectfully submitted,

RICHARD SVOBODNY

Acting Attorney General

JOANNE M. GRACE

Counsel of Record

CAMERON M. LEONARD

Assistant Attorneys General

STATE OF ALASKA

DEPARTMENT OF LAW

P.O. Box 110300

Juneau, Alaska 99811-0300

(907) 465-3600