Fairbanks North Star v. U.S. Army Corps of Engs.

• Decision Date: 12 September 2008
• Docket Number: No. 07-35545.,07-35545.
• Citation: 543 F.3d 586
• Parties: FAIRBANKS NORTH STAR BOROUGH, Plaintiff-Appellant, v. U.S. ARMY CORPS OF ENGINEERS; John W. Peabody; Kevin J. Wilson, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

543 F.3d 586

FAIRBANKS NORTH STAR BOROUGH, Plaintiff-Appellant, v. U.S. ARMY CORPS OF ENGINEERS; John W. Peabody; Kevin J. Wilson, Defendants-Appellees.

No. 07-35545.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 4, 2008.

Filed September 12, 2008.

Joseph W. Miller, Fairbanks North Star Borough, Fairbanks, AK; James S. Burling and Damien M. Schiff (argued), Pacific Legal Foundation, Sacramento, CA, for the plaintiff-appellant.

Ronald J. Tenpas, Acting Assistant Attorney General, Steven E. Rusak, Ellen J. Durkee, Aaron P. Avila and Robert H. Oakley (argued), Attorneys, United States Department of Justice, Environmental and Natural Resources Division, Washington, DC; Toni B. London, United States Army Corps of Engineers, Office of Counsel, for the defendants-appellees.

Appeal from the United States District Court for the District of Alaska; Ralph R. Beistline, District Judge, Presiding. D.C. No. CV-06-00026-F-RRB.

Before: D.W. NELSON, A. WALLACE TASHIMA and RAYMOND C. FISHER, Circuit Judges.

FISHER, Circuit Judge:

The Clean Water Act ("CWA") makes it unlawful to discharge dredged and fill material into the waters of the United States except in accord with a permitting regime jointly administered by the Army Corps of Engineers ("Corps") and the Environmental Protection Agency ("EPA"). See United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985). Fairbanks North Star Borough ("Fairbanks") seeks judicial review of a Corps' "approved jurisdictional determination," which is a written, formal statement of the agency's view that Fairbanks' property contained waters of the United States and would be subject to regulation under the CWA. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's dismissal on the pleadings for lack of jurisdiction. The Corps' approved jurisdictional determination is not final agency action within the meaning of the Administrative Procedure Act ("APA"), 5 U.S.C. § 704.

BACKGROUND¹

"The burden of federal regulation on those who would deposit fill material in locations denominated `waters of the United States' is not trivial." Rapanos v. United States, 547 U.S. 715, 721, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion). Under the CWA, "any discharge of dredged or fill materials into ... `waters of the United States'[] is forbidden unless authorized by a permit issued by the Corps of Engineers pursuant to" Section 404 of the CWA, which is codified at 33 U.S.C. § 1344. Leslie Salt Co. v. United States, 55 F.3d 1388, 1391 (9th Cir. 1995); see also Riverside Bayview, 474 U.S. at 123, 106 S.Ct. 455; Se. Alaska Conservation Council v. U.S. Army Corps of Eng'rs, 486 F.3d 638, 646 (9th Cir.2007). "The Corps has issued regulations defining the term `waters of the United States,'" Solid Waste Agency of N. Cook County v. U.S. Army Corps of Eng'rs, 531 U.S. 159, 163, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), to include most wetlands adjacent to waters of the United States that are not themselves wetlands, see 33 C.F.R. § 328.3(a)(7).

Fairbanks wishes to develop a 2.1 acre tract of property for its residents' recreational use. It intends to build "play-grounds, athletic fields, concession stands, restrooms, storage buildings, road[s], and parking lots," the construction of which will "include the placement of fill material." In October 2005, Fairbanks wrote to the Corps to "ask[ ] for [its] review and determination" that it could place fill material on its property without further ado. It asked the Corps to "provide a detailed, scaled drawing showing the ... wetlands in relation to the lot boundaries." The Corps thereafter issued a "preliminary" jurisdictional determination finding that Fairbanks' entire parcel contained wetlands. Fairbanks then requested that the Corps provide an "approved" jurisdictional determination. In December 2005, the Corps obliged Fairbanks and replied:

Based on our review of the information you furnished and available to our office, we have determined that the entire parcel described above contains waters of the United States ... under our regulatory jurisdiction.... This approved jurisdictional determination is valid for a period of five (5) years ... unless new information supporting a revision is provided to this office....

The Corps' letter went on to remind Fairbanks that "Section 404 of the Clean Water Act requires that a[] permit be obtained for the placement or discharge of dredged and/or fill material into waters of the U.S., including wetlands, prior to conducting the work." Fairbanks took a timely administrative appeal of the approved jurisdictional determination, which the Corps found to be without merit in May 2006. Fairbanks has not since applied for a Section 404 permit. Nor has the Corps initiated any pre-enforcement or enforcement action.

In August 2006, Fairbanks brought this suit to set aside the Corps' approved jurisdictional determination. According to Fairbanks, the Corps acted unlawfully in asserting that its property was subject to CWA regulatory jurisdiction. Fairbanks contended that its property could not possibly be a wetland because it 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." A Corps regulation, which is not challenged here, provides that:

The term wetlands means those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.

33 C.F.R. § 328.3(b). To identify wetlands under this regulation, the Corps uses its 1987 Wetlands Delineation Manual ("Manual"). See Energy and Water Development Appropriations Act, Pub.L. No. 102-377, 106 Stat. 1315, 1324 (1992); United States v. Deaton, 332 F.3d 698, 712 (4th Cir.2003).

The Manual explains that wetlands have the three "general diagnostic environmental characteristics" of vegetation, soil and hydrology. Manual ¶ 26(b). Generally, "evidence of a minimum of one positive wetland indicator from each parameter (hydrology, soil, and vegetation) must be found in order to make a positive wetland determination." Id. ¶ 26(c). Fairbanks alleged that its property lacks wetlands hydrology, because it is not "periodically inundated" and does not have "saturated soils during the growing season." Id. ¶ 46. The Manual defines "growing season" as "[t]he portion of the year when soil temperatures at 19.7 in. below the soil surface are higher than biologic zero (5 C)" and notes that "[f]or ease of determination this period can be approximated by the number of frost-free days." Id. at App. A. Fairbanks asserted that the Corps' jurisdictional determination improperly relied on a special definition of "growing season," which Fairbanks calls the "Alaska Rule," inconsistent with the Manual's definition. The Alaska Rule states that the frost-free period based on a "28 degree air temperature" best fits the "observed growing season in most parts of [Alaska]." See Army Corps of Engineers, Alaska District, Special Public Notice 03-05 (July 25, 2003). By using the Alaska Rule, Fairbanks claimed, the Corps could establish a growing season even when a property is underlain by shallow permafrost, and never has a subsurface soil temperature higher than biologic zero.² Consequently, the Corps' finding that Fairbanks' property was a wetland subject to CWA regulatory jurisdiction was erroneous.

The district court granted the Corps' motion for judgment on the pleadings, concluding that the approved jurisdictional determination did not constitute final agency action under the APA, that Fairbanks' challenge was unripe and that the CWA statutorily precluded judicial review. Fairbanks timely appealed.

STANDARD OF REVIEW

"We review a judgment dismissing a case on the pleadings de novo." Dunlap v. Credit Prot. Ass'n, L.P., 419 F.3d 1011, 1012 n. 1 (9th Cir.2005) (per curiam). "A judgment on the pleadings is properly granted when, taking all the allegations in the pleadings as true, the moving party is entitled to judgment as a matter of law." Id. (internal quotation marks omitted). "We review de novo the district court's determination that it lacked subject matter jurisdiction. We therefore do not defer to the agency's position on whether agency action is final." Or. Natural Desert Ass'n v. U.S. Forest Serv., 465 F.3d 977, 979 n. 1 (9th Cir.2006) (internal citations omitted).

DISCUSSION

As a matter of first impression, we hold that the Corps' issuance of an approved jurisdictional determination finding that Fairbanks' property contained waters of the United States did not constitute final agency action under the APA for purposes of judicial review.³ "As a general matter, two conditions must be satisfied for agency action to be final: First, the action must mark the consummation of the agency's decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow." Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) (internal citations and quotation marks omitted). The approved jurisdictional determination represented the Corps' definitive administrative position that Fairbanks' property contained wetlands. But, as we shall explain, it did not "`impose an obligation, deny a right, or fix some legal relationship.'" Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 (9th Cir.1990) (quoting Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113, 68 S.Ct. 431, 92 L.Ed. 568 (1948)). Because finality is a jurisdictional requirement to obtaining judicial review under the APA, the district court correctly dismissed Fairbanks' action. See Or. Natural Desert Ass'n, 465...