708 Fed.Appx. 301 (9th Cir. 2017), 15-35906, Universal Welding & Fabrication, Inc. v. United States Army Corps of Engineers

Docket Nº15-35906
Citation708 Fed.Appx. 301
Party NameUNIVERSAL WELDING & FABRICATION, INC., an Alaska Corporation, Plaintiff-Appellant, v. UNITED STATES ARMY CORPS OF ENGINEERS and Christopher D. Lestochi, Colonel, in his official capacity as Commander of the Alaska District of the Corps, Defendants-Appellees.
AttorneyJames Sherman Burling, Damien Michael Schiff, Pacific Legal Foundation, Sacramento, CA, for Plaintiff-Appellant John Emad Arbab, Attorney, DOJ— U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Austin David Saylor, Attorney, DOJ— U.S. Department of Justice, Env...
Judge PanelBefore: GRABER, CLIFTON, and M. SMITH, Circuit Judges.
Case DateAugust 30, 2017
CourtUnited States Courts of Appeals, United States Court of Appeals (9th Circuit)

Page 301

708 Fed.Appx. 301 (9th Cir. 2017)

UNIVERSAL WELDING & FABRICATION, INC., an Alaska Corporation, Plaintiff-Appellant,

v.

UNITED STATES ARMY CORPS OF ENGINEERS and Christopher D. Lestochi, Colonel, in his official capacity as Commander of the Alaska District of the Corps, Defendants-Appellees.

No. 15-35906

United States Court of Appeals, Ninth Circuit

August 30, 2017

Argued and Submitted August 16, 2017 Anchorage, Alaska

Editorial Note:

Governing the citation to unpublished opinions please refer to federal rules of appellate procedure rule 32.1. See also U.S.Ct. of App. 9th Cir. Rule 36-3.

Page 302

Appeal from the United States District Court for the District of Alaska, Timothy M. Burgess, Chief Judge, Presiding, D.C. No. 4:14-cv-00021-TMB

James Sherman Burling, Damien Michael Schiff, Pacific Legal Foundation, Sacramento, CA, for Plaintiff-Appellant

John Emad Arbab, Attorney, DOJ— U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC, Austin David Saylor, Attorney, DOJ— U.S. Department of Justice, Environmental & Natural Resources Div., Washington, DC, for Defendants-Appellees

Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.

MEMORANDUM[*]

Plaintiff Universal Welding appeals the district court’s grant of summary judgment to the United States Army Corps of Engineers as to Plaintiff’s claim that the Corps’ permit decision was invalid under the Administrative Procedure Act. Reviewing de novo, "thus reviewing directly the agency’s action under the [APA’s] arbitrary and capricious standard," we affirm. Alaska Wilderness League v. Jewell, 788 F.3d 1212, 1217 (9th Cir. 2015) (internal quotation marks omitted).

Plaintiff argues that the Corps’ permit decision was invalid because the Corps lacks jurisdiction over the wetland on Plaintiff’s property. Specifically, Plaintiff contends that the Corps plainly erred in interpreting 33 C.F.R. § 328.3(a)(7) to provide, rather than preclude, the Corps’ jurisdiction over the subject wetland. That provision appears within a list of waters over which the Corps may exercise regulatory jurisdiction: (1) Waters that were, are, or may be used in interstate or foreign commerce;

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(2) "All interstate waters including interstate wetlands" ;

(3) "All other waters ..., the use, degradation or destruction of which could affect interstate or foreign commerce" ;

(4) All impoundments of identified waters;

(5) "Tributaries of waters identified in paragraphs (a)(1) through (4) of this section" ;

(6) "The territorial seas" ; and,

(7) "Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a)(1) through (6) of this section."

33 C.F.R. § 328.3(a) (2014).

The regulation clarifies that "[t]he term adjacent means bordering, contiguous, or neighboring" and that "[w]etlands separated from other waters of the United States by man-made dikes or barriers, natural river berms, beach dunes and the like" are nonetheless "adjacent wetlands." 33 C.F.R. § 328.3(c).

Plaintiff argues that, under § 328.3(a)(7), the wetland on its property...

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