P & V Enterprises v. U.S. Army Corps of Engineers

• Decision Date: 19 February 2008
• Docket Number: No. 07-5060.,07-5060.
• Citation: 516 F.3d 1021
• Parties: P & V ENTERPRISES, et al., Appellants v. U.S. ARMY CORPS OF ENGINEERS, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

516 F.3d 1021

P & V ENTERPRISES, et al., Appellants v. U.S. ARMY CORPS OF ENGINEERS, et al., Appellees.

No. 07-5060.

United States Court of Appeals, District of Columbia Circuit.

Argued January 11, 2008.

Decided February 19, 2008.

Appeal from the United States District Court for the District of Columbia (No. 05cv01579).

John A. Hodges argued the cause for appellants. With him on the briefs were Eric S. Andreas and Andrew M. Miller.

Anna T. Katselas, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Katherine W. Hazard and Eileen T. McDonough, Attorneys. R. Craig Lawrence, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge:

The issue on appeal is whether the U.S. Army Corps of Engineers ("Corps") reopened consideration of a 1986 rule such that the district court erred in dismissing a facial challenge to the rule as untimely under 28 U.S.C. § 2401(a). We affirm.

I.

Section 404 of the Clean Water Act ("CWA") authorizes the Corps to regulate the discharge of dredged and fill material into "navigable waters," which are "the waters of the United States, including the territorial seas." 33 U.S.C. §§ 1344, 1362(7). In 1986, the Corps promulgated a definition of "waters of the United States."¹ 51 Fed.Reg. 41,210, 41,216-17, 41,250. (Nov. 13, 1986) (codified at 33 C.F.R. § 328.3(a)(3)) ("the 1986 rule"). In 2001, the Supreme Court held that the Corps had exceeded its authority under section 404(a) in promulgating the Migratory Bird Rule as applied to "an abandoned sand and gravel pit." Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs ("SWANCC"), 531 U.S. 159, 174, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001). Because that rule raised "significant constitutional questions" by "invok[ing] the outer limits of Congress' power" under the Commerce Clause, the Court held that "a clear indication" of Congressional intent was required and there was none. Id. at 172, 121 S.Ct. 675.

In January 2003, the Corps issued an Advance Notice of Proposed Rulemaking ("ANPRM"), 68 Fed.Reg. 1991 (Jan. 15, 2003). Its summary section stated:

Today's ANPRM requests public input on issues associated with the definition of "waters of the United States" and also solicits information or data from the general public, the scientific community, and Federal and State resource agencies on the implications of the SWANCC decision for jurisdictional decisions under the CWA. The goal ... is to develop proposed regulations that will further the public interest by clarifying what waters are subject to CWA jurisdiction and affording full protection to these waters.... The input received from the public in response to today's ANPRM will be used by the [Corps] to determine the issues to be addressed and the substantive approach for a future proposed rulemaking addressing the scope of CWA jurisdiction. Pending this rulemaking, should questions arise, the regulated community should seek assistance from the Corps . . .

Id. at 1991 (emphasis added). An accompanying memorandum contained "clarifying guidance regarding [SWANCC]," advising that "more refined factual and legal analysis will be required to make a jurisdictional determination" under the 1986 rule for certain waters and instructing staff to obtain prior Headquarters' approval. Id. at 1996, 1997-98. Approximately 130,000 comments were received. On December 16, 2003, the Corps issued a one-page Press Release announcing that it "would not issue a new rule on federal regulatory jurisdiction over isolated wetlands." Press Release, U.S. Army Corps of Eng'rs & U.S. Envtl. Prot. Agency, EPA, Comps of Engineers Issue Wetlands Decision, at 1 (Dec. 16, 2003).

On August 5, 2005, P & V Enterprises, Friendly Valley. Equestrian Homes, SCC Acquisitions, Inc., and SunCal Martinville LLC (hereafter "P & V") filed suit, challenging the 1986 rule's definition of "waters of the United States" as "facially invalid" under the Commerce Clause. Compl. ¶ 40. The complaint alleged that the Corps had overstepped its authority in asserting jurisdiction over the Mojave River, which is an "isolated, intrastate" river. Id. ¶ 16. As owners or intended developers of approximately 8,000 acres of "desert land" that includes several "ephemeral" tributaries to the Mojave River, near Barstow, California, P & V asserted economic injury and that it faced the "classic Hobson's choice" of submitting to costly regulation or paying enforcement penalties. Id. ¶ 34. The Corps moved to dismiss the complaint pursuant to FED.R.Civ.P. 12(b)(1) for lack of subject-matter jurisdiction, asserting sovereign-immunity and, alternatively, that if the complaint stated a claim under the Administrative Procedure Act ("APA") it was untimely under 28 U.S.C. § 2401(A). P & V responded that the APA's waiver of sovereign immunity applied regardless whether it was stating an APA claim, Chamber of Commerce v. Reich, 74 F.3d 1322, 1328 (D.C.Cir.1996), that section 2401(a) was not jurisdictional in view of Irwin v. Department of Veterans Affairs, 498 U.S. 89, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), and that the Corps had reopened the 1986 rule for facial challenge by issuing the ANPRM and Press Release in 2003. The district court dismissed the complaint for failure to state a claim, relying on section 2401(a). P & V Enters. v. U.S. Army Corps of Eng'rs, 466 F.Supp.2d 134, 147 (D.D.C.2006). P & V appeals and our review is de novo. Fetter v. Kemptharne, 473 F.3d 1255, 1259 (D.C.Cir.2007).

II.

Section 2401(a) provides that: "[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). This court has held that "[t]he right of action first accrues on the date of the final agency action." Harris v. FAA, 353 F.3d 1006, 1010 (D.C.Cir.2004). Because P & V did not challenge the 1986 rule until 2005, it relies on the reopening doctrine.

The reopening {doctrine allows an otherwise stale challenge to proceed because "the agency opened the issue up anew," and then "reexamined ... and reaffirmed its [prior] decision." Pub. Citizen v. Nuclear Reg. Comm'n, 901 F.2d 147, 150-51 (D.C.Cir.1990) (quoting Ass'n of Am. R.R. v. Interstate Commerce Comm'n, 846 F.2d 1465, 1473 (D.C.Cir. 1988)). The doctrine only applies, however, where "the entire context," id. at 150, demonstrates that the agency "ha[s] undertaken a serious, substantive reconsideration of the [existing] rule," Nat'l Mining Assn v. U.S. Dep't of Interior, 70 F.3d 1345, 1352 (D.C.Cir.1995). It is designed "to ensure that `when the agency ... by some new promulgation creates the opportunity for renewed comment and objection,' affected parties may seek judicial review, even when the agency decides not to amend the long-standing rule at issue." Gen. Motors Corp. v. EPA, 363 F.3d 442, 449-50 (D.C.Cir.2004) (quoting State of Ohio v. EPA, 838 F.2d 1325, 1328 (D.C.Cir.1988)). We conclude that the Corps' statements in the 2003 notices do not demonstrate final agency action under the reopening doctrine.

First, the January 2003 ANPRM did not set forth for public comment the Corps' views on the 1986 rule at all, much less its views in the form of a proposed rulemaking. The ANPRM requested information and data from interested parties so that the Corps could determine upon consideration of the responses whether to take any further action in view of SWANCC. The occasion for the ANPRM was, as P & V acknowledges, the Supreme Court's decision in SWANCC, not any Corps decision to reconsider the 1986 rule. See, e.g., 68 Fed.Reg. at 1991-93. That was, as the name of the ANPRM indicated, merely a possible next step. Although the ANPRM stated that the Corps "ha[d] not engaged in a review of the regulations with the public concerning CWA jurisdiction for some time," it went on to make clear that this request for comment was limited to a request for "early estimates of potential resource implications of the SWANCC decision." Id. at 1993-94. In particular, the Corps sought "information, data, or studies addressing the extent of resource impacts to isolated, intrastate, non-navigable waters"; "information regarding the functions and values of wetlands and other waters that may be affected by the issues discussed in this ANPRM"; and "scientific and technical studies and data, analysis of environmental impacts, effects on interstate commerce, other impacts, etc." Id. at 1994.

Second, although referring to the 1986 ruland other regulations, the ANPRM did not suggest that the Corps considered the substance of the rule to be in doubt in any precise manner, as has been found to be a factor that may show reopening. For example, in Edison Electric Institute v. EPA, 996 F.2d 326, 330 (D.C.Cir.1993), the agency issued a notice of proposed rulemaking that both discussed "concerns that some legitimate [use] technically may be prohibited [by the existing rule]" and requested "comment on alternative approaches" regarding the regulation, providing specific substantive examples for comment. By contrast, the ANPRM did not suggest a similar level of commitment of agency resources had occurred, but at most indicated that a substantive proposal for review might follow consideration of "public input on what, if any, revisions in light of SWANCC might be appropriate to the regulations," 68 Fed.Reg. at 1992, including "comment on the use of the factors" in the 1986 rule, id. at 1994.

Third, the fact that the ANPRM neither offered a proposed rule nor "h[eld] out the unchanged section as [such], offering an explanation for its language, [and] soliciting comments on its substance," also weighs against a reopening. See Am. Iron & Steel Inst. v. EPA, 886 F.2d 390, 397-98 (D.C.Cir.1989) (citing State of Ohio, 838 F.2d at 1328). The ANPRM...