Slater Park Land & Livestock, LLC v. U.S. Army Corps of Eng'rs

• Decision Date: 30 October 2019
• Docket Number: Civil Action No. 19-cv-00644-CMA-GPG
• Citation: 423 F.Supp.3d 1076
• Parties: SLATER PARK LAND AND LIVESTOCK, LLC, a Colorado Limited Liability Company, Plaintiff, v. U.S. ARMY CORPS OF ENGINEERS, Susan Bachini Nall, in her official capacity as the Chief of the Colorado West Section Regulatory Division of the Sacramento District of the United States Army Corps of Engineers, Defendants.
• Court: U.S. District Court — District of Colorado

423 F.Supp.3d 1076

SLATER PARK LAND AND LIVESTOCK, LLC, a Colorado Limited Liability Company, Plaintiff,

v.U.S. ARMY CORPS OF ENGINEERS, Susan Bachini Nall, in her official capacity as the Chief of the Colorado West Section Regulatory Division of the Sacramento District of the United States Army Corps of Engineers, Defendants.

Civil Action No. 19-cv-00644-CMA-GPG

United States District Court, D. Colorado.

Signed October 30, 2019

Kent H. Holsinger, Holsinger Law, LLC, Denver, CO, for Plaintiff.

Alan David Greenberg, U.S. Department of Justice-Denver-ENRS Environment & Natural Resources Section, Denver, CO, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

CHRISTINE M. ARGUELLO, United States District Judge

This matter is before the Court on Defendants U.S. Army Corps of Engineers and Susan Bachini Nall's Motion to Dismiss. (Doc. # 14.) Based on the following reasons, the Court grants Defendants' Motion.

I. BACKGROUND

In 2012, Plaintiff reconstructed an 1800's era earthen dam across Slater Creek— a small stream that runs throughout Plaintiff's property in Routt County, Colorado. (Doc. # 14 at 5; Doc. # 17 at 3.) The original dam was built to create a pond to facilitate irrigation and stock watering, but it was washed out by a severe weather event in the 1930's. (Doc. # 1 at 10, ¶ 45.) In 2017, Defendants received a report of Plaintiff's dam construction on Slater Creek and opened an investigation.¹ (Doc. # 14 at 5.)

Defendants' investigation concluded that Plaintiff discharged fill material into Slater Creek and the surrounding protected wetlands during the construction of the on-channel pond. (Doc. # 17 at 6.) On August 17, 2018, Defendants issued a letter notifying Plaintiff that the dam was constructed in violation of § 404 of the Clean Water Act ("CWA"). (Doc. # 14 at 6; Doc. # 1-2 at 1.) Plaintiff challenges Defendants' notice of violation ("NOV") in the instant suit.

After indicating that Plaintiff's dam was unauthorized, the NOV set forth several options which Plaintiff could implement to remedy the situation without incurring disciplinary action. (Doc. # 17 at 6.) These options included: "restoring the impacted waters to pre-disturbance conditions, partially restoring impacted waters, and/or obtaining an after-the-fact permit for all or a portion of the work." (Doc. # 1-2 at 1.) Then, the NOV requested that Plaintiff choose one of the options and notify Defendants of its "remedy proposal" by August 31, 2018. (Id. at 1–2.) The letter further stated that failure to respond to the request for a remedy proposal "may result in elevated enforcement actions" such as "possible referral to the EPA, fines, and/or penalties." (Id. at 2.)

Plaintiff contends that the construction of the dam is exempt from the CWA pursuant to the CWA's agricultural exemption. (Doc. # 17 at 3.) Thus, Plaintiff did not submit a remedy proposal to Defendants. (Doc. # 14 at 7.) Instead, on March 7, 2019, Plaintiff filed this action seeking judicial review of the NOV. (Doc. # 1.) Plaintiff alleges that the NOV interferes with its use and enjoyment of its land. (Id. at 3, ¶ 6.) Plaintiff seeks two forms of relief. First, Plaintiff seeks injunctive relief against the enforcement of the NOV. (Id. at 4, ¶ 9.) Second, Plaintiff seeks a declaration that: (1) the reconstruction of the dam is exempt from the CWA; and (2) Plaintiff's due process rights were violated by Defendants' issuance of the NOV. (Doc. # 17 at 4.)

Defendants filed the instant Motion to Dismiss on May 31, 2019. (Doc. # 14.) Defendants assert that the Court lacks jurisdiction because the NOV is not a final agency action. (Id. at 1–2.) Plaintiff filed a Response on June 21, 2019 (Doc. # 17), and Defendants filed a Reply on July 5, 2019 (Doc. # 18).

II. GOVERNING LAW

A. § 704 OF THE APA AND THE REQUIREMENT OF FINAL AGENCY ACTION

The APA authorizes judicial review of "[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court." Kansas, ex rel. Schmidt v. Zinke , 861 F.3d 1024, 1028 (10th Cir. 2017) ; 5 U.S.C. § 704. There is no statute authorizing judicial review in this case; therefore, this Court may only review Defendants' action if it constitutes "final agency action." Lujan v. Nat'l Wildlife Fed'n , 497 U.S. 871, 882, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

Pursuant to the Supreme Court's ruling in Bennett v. Spear , "two conditions must be satisfied for agency action to be ‘final.’ " 520 U.S. 154, 177, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997). First, the action must "mark the consummation of the decisionmaking process." Id. at 177–78, 117 S.Ct. 1154. Second, the action must be one by which "rights or obligations have been determined," or from which "legal consequences will flow." Id. at 178, 117 S.Ct. 1154.

B. DISMISSAL UNDER RULE 12(b)

Defendants filed this Motion to Dismiss under Rule 12(b)(1) for lack of subject-matter jurisdiction. (Doc. # 14.) However, the presence of final agency action is not a jurisdictional issue.²

Sierra Club v. Jackson , 648 F.3d 848, 854 (D.C. Cir. 2011) (citing Trudeau v. FTC , 384 F. Supp. 2d 281, 294 n.13 (D.D.C. 2005), aff'd , 456 F.3d 178 (D.C. Cir. 2006) ). This Court has federal question jurisdiction pursuant to 28 U.S.C. § 1331, whereas the APA's requirements are a part of Plaintiff's cause of action. Oryszak v. Sullivan , 576 F.3d 522, 524–25 (D.C. Cir. 2009). Therefore, this Motion to Dismiss would have been more appropriately filed under Rule 12(b)(6) for failure to state a claim.

Nevertheless, courts are "required to convert a Rule 12(b)(1) motion to dismiss into a Rule 12(b)(6) motion...when resolution of the jurisdictional question is intertwined with the merits of the case." Holt v. United States , 46 F.3d 1000, 1003 (10th Cir. 1995). Facial challenges to jurisdiction and motions to dismiss for failure to state a claim are analyzed similarly because both consider all the facts alleged in the complaint as true. Id. at 1002 ; Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Thus, the Court analyzes Defendants' claim pursuant to Rule 12(b)(6).

The Court may dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To withstand a Rule 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

The scope of the allegations may not be "so general that they encompass a wide swath of conduct, much of it innocent" or else the plaintiff has " ‘not nudged [his] claims across the line from conceivable to plausible.’ " Robbins v. Oklahoma , 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A plaintiff may not rely on mere labels or conclusions, "and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. The ultimate duty of the court is to "determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal theory proposed." Forest Guardians v. Forsgren , 478 F.3d 1149, 1160 (10th Cir. 2007).

III. ANALYSIS

A. DEFENDANTS' ACTION WAS NOT FINAL

1. The NOV Was a Pre-Enforcement Action

33 C.F.R. § 326.3 treats NOVs as a distinct type of agency action. An NOV is a pre-enforcement action, which merely notifies the recipient that they are in violation of a pre-existing statutory requirement. An order, on the other hand, commands the party in violation to take a specific course of action in order to correct such a violation. Compare § 326.3(c)(2) ("[o]nce the district engineer has determined that a violation exists...the district engineer should...notify the responsible parties of the violation"), with § 326.3(d)(2) ("[a]n order requiring initial corrective measures that resolve the violation may also be issued by the district engineer in situations where the acceptance or processing of an after-the-fact permit application is prohibited or considered not appropriate....").

Plaintiff asserts that Defendants attempted to "disguise the NOV as an informal communication of information," when it actually represented a "legally binding, mandatory command that, if disobeyed, would subject [Plaintiff] to significant liability." (Doc. # 17 at 17.) By making this assertion, Plaintiff essentially alleges that Defendants' NOV is a compliance order, which would be reviewable under the APA. Sackett v. EPA , 566 U.S. 120, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012).³ Unlike compliance orders, however, notices of violation cannot be legally enforced. Therefore, notices of violation are distinct from compliance orders in terms of reviewability. See 33 U.S.C. § 1319(a)(1), (b), and (g) (distinguishing NOVs from enforcement actions such as administrative compliance orders or penalty proceedings).

NOVs under the CWA ("CWA-NOV") are very similar to "notice[s] of violation" issued by the EPA pursuant to § 7413(a) of the Clean Air Act ("CAA-NOV"). 42 U.S.C. § 7413(a) ; see also Folsom v. United States Army Corps of Eng'r Neb. Dist. , No. 4:17-CV-3143, 2018 WL 2049839, at *6 (D. Neb. Apr. 23, 2018) (noting the similarities between CAA-NOVs and a proposed compliance order issued by the EPA upon violation of the CWA). In CAA-NOVs, the EPA provides a "threshold allegation" of potential violations. Luminant Generation Co., LLC v. EPA , 757 F.3d 439, 441–42 (5th Cir. 2014). For instance, in Luminant , the Fifth Circuit found that CAA-NOVs are not final under § 704 because

issuing a notice

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