Municipality of Anchorage v. U.S., s. 91-35321

• Decision Date: 09 December 1992
• Docket Number: Nos. 91-35321,91-35643,s. 91-35321
• Citation: Municipality of Anchorage v. U.S., 980 F.2d 1320 (9th Cir. 1992)
• Parties: , 23 Envtl. L. Rep. 20,302 MUNICIPALITY OF ANCHORAGE, et al., Plaintiffs, and The City of Craig, Alaska and the City & Borough of Sitka, Alaska, Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees. MUNICIPALITY OF ANCHORAGE; Arco Alaska, Inc.; Doyon, Ltd., an Alaska Native Corp.; Arctic Slope Regional; State of Alaska; Fairbanks North Star Borough, Plaintiffs-Appellants, v. UNITED STATES of America; William K. Reilly, Administrator, U.S. Environmental Protection Agency; Michael P.W. Stone, U.S. Dept. of the Army; Lajuana S. Wilcher, Ass't Administrator for Water, United States EPA; Robie G. Russell, Administrator, United States EPA, Region X; Robert W. Page, Ass't Secretary of the Army, Civil Works; William W. Kakel, District Engineer United States Army Engineer District, Alaska, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1320

980 F.2d 1320

37 ERC 1017, 23 Envtl. L. Rep. 20,302

MUNICIPALITY OF ANCHORAGE, et al., Plaintiffs, and The City of Craig, Alaska and the City & Borough of Sitka, Alaska, Plaintiffs-Appellants, v. UNITED STATES of America, et al., Defendants-Appellees.

MUNICIPALITY OF ANCHORAGE; Arco Alaska, Inc.; Doyon, Ltd.,

an Alaska Native Corp.; Arctic Slope Regional;

State of Alaska; Fairbanks North Star

Borough, Plaintiffs-Appellants, v. UNITED STATES of America; William K. Reilly, Administrator,

U.S. Environmental Protection Agency; Michael P.W. Stone,

U.S. Dept. of the Army; Lajuana S. Wilcher, Ass't

Administrator for Water, United States EPA; Robie G.

Russell, Administrator, United States EPA, Region X; Robert

W. Page, Ass't Secretary of the Army, Civil Works; William

W. Kakel, District Engineer United States Army Engineer

District, Alaska, Defendants-Appellees.

Nos. 91-35321, 91-35643.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 2, 1992.

Decided Dec. 9, 1992.

James S. Burling, Pacific Legal Foundation, Anchorage, Alaska, Ronald A. Zumbrun and Robin L. Rivett, Pacific Legal Foundation, Sacramento, Cal., for plaintiffs-appellants.

James N. Reeves and K. Adam Kroloff, Bogle & Gates, Anchorage, Alaska, for appellant ARCO Alaska, Inc.

J. Carol Williams and Blake A. Watson, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

Appeal from the United States District Court for the District of Alaska.

Before: WRIGHT, CANBY, WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

OVERVIEW

Plaintiffs challenge the district court's dismissal of their claims that the Environmental Protection Agency (EPA) and the Army Corps of Engineers (the Corps) violated the Administrative Procedure Act (APA) and the National Environmental Policy Act (NEPA) in adopting a Memorandum of Agreement (MOA). The district court dismissed plaintiffs' claims on defendants' motion. We affirm.

BACKGROUND

Section 404(b)(1) of the Clean Water Act (CWA) requires the Administrator of the EPA, in conjunction with the Secretary of the Army, to develop guidelines for the issuance of dredge and fill permits. 33 U.S.C. § 1344(b)(1) (1988). Pursuant to that section, the EPA promulgated dredge and fill permit guidelines in 1980, and the Corps adopted similar guidelines that were later revised in 1986.

In November, 1989, the EPA and the Corps signed an MOA, setting forth the policy and procedures to be used in determining the type and level of mitigation that would be required to comply with section 404(b)(1) guidelines. The purpose of the MOA was to provide guidance to field personnel in the exercise of their discretion under the guidelines, thereby making permit decisions more consistent and predictable. Because the EPA and the Corps were convinced that the MOA was either an interpretation of the existing guidelines or a general policy statement and therefore exempt from the procedural requirements of 5 U.S.C. § 553, the MOA was adopted and published without the notice and comment period required for rulemaking under the Administrative Procedure Act (APA). See 5 U.S.C. § 553 (1988). In addition, because the EPA and the Corps believed that the MOA was exempt from the requirements of NEPA, they did not prepare an environmental impact statement (EIS) or otherwise comply with NEPA in adopting the MOA. See 42 U.S.C. § 4332 (1988).

Plaintiffs filed lawsuits alleging that adoption of the MOA violated 5 U.S.C. §§ 553 and 706 and 42 U.S.C. § 4332. After the district court consolidated the cases, EPA and the Corps moved to dismiss the claims. Plaintiffs also moved jointly for summary judgment. The district court granted the EPA and the Corps' motion to dismiss, holding that the case was not ripe for adjudication. Plaintiffs appeal from that dismissal. This court has jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

DISCUSSION

Plaintiffs raise three issues on appeal. First, they contend that their APA challenges to the adoption of the MOA are ripe. Second, they argue that the MOA, in fact, violated the APA. Finally, they maintain that the EPA and the Corps failed to follow certain procedures required by NEPA in adopting the MOA.

I. Ripeness of Plaintiffs' APA Claims

The first issue we address is the ripeness of plaintiffs' APA claims. Ripeness for federal adjudication being a question of law, we review the district court's decision de novo. See Southern Pac. Transp. Co. v. Los Angeles, 922 F.2d 498, 502 (9th Cir.1990) (citing Hoehne v. San Benito, 870 F.2d 529, 531 (9th Cir.1989)), cert. denied, --- U.S. ----, 112 S.Ct. 382, 116 L.Ed.2d 333 (1991).

The Supreme Court has indicated that ripeness is to be determined by the application of a two prong test. See Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515-16, 18 L.Ed.2d 681 (1967). In Abbott, the Court held that we must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id.; see also Assiniboine & Sioux Tribes v. Board of Oil & Gas Conservation, 792 F.2d 782, 788 (9th Cir.1986). "[R]ipeness will prevent review if the systemic interest in postponing adjudication due to lack of fitness outweighs the hardship on the parties created by postponement." Chavez v. Director, OWCP, 961 F.2d 1409, 1414 (9th Cir.1992) (citations omitted).

A. Fitness for Review

We will determine first the fitness for judicial review of plaintiffs' claim that the EPA and the Corps violated the notice and comment requirement of the APA. See 5 U.S.C. § 553 (1988). Generally, agency action is fit for review if the issues presented are purely legal and the regulation at issue is a final agency action. Abbott, 387 U.S. at 149, 87 S.Ct. at 1516; see also Assiniboine & Sioux Tribes, 792 F.2d at 789 ("Review is not premature if the agency action is final, and is 'purely legal.' " (quoting Abbott )). However, the Supreme Court has indicated that there are instances when a purely legal challenge to a final agency action will not be considered ripe. In Toilet Goods Association v. Gardner, 387 U.S. 158, 87 S.Ct. 1520, 18 L.Ed.2d 697 (1967), decided the same day as Abbott, the Court held that a legal challenge to final agency action was not ripe because "judicial appraisal ... is likely to stand on much surer footing in the context of a specific application of th[e] regulation...." Id. at 164, 87 S.Ct. at 1524; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 891, 110 S.Ct. 3177, 3190, 111 L.Ed.2d 695 (1990) (indicating that agency regulations are not ordinarily ripe for review until the "factual components [have been] fleshed out, by some concrete action applying the regulation...."); Trustees For Alaska v. Hodel, 806 F.2d 1378, 1381 (9th Cir.1986) (stating that agency action is fit for review if further factual development is not required).

In this case, the parties agree that the challenge to the MOA presents purely legal issues. We agree. However, whether the MOA is a final agency action is less clear. Just before oral argument in this case, President Bush proposed an amendment to the MOA that would change the agencies' position substantially if adopted. The proposed amendment raises question as to whether the MOA can be characterized as a "definitive statement" of any agency's position. See Mt. Adams Veneer Co. v. U.S., 896 F.2d 339, 343 (9th Cir.1990) ("Indicia of finality include: the administrative action challenged should be a definitive statement of an agency's position; the action should have a direct and immediate effect on the day-to-day business of the complaining parties; ... immediate compliance should be expected...."). Nevertheless, the parties agree that the MOA is a final agency action. In light of the government's concession, we will assume, without ruling on the question, that the MOA is final agency action for purposes of deciding the ripeness of plaintiffs' APA claims. Plaintiffs' appeal focuses on the district court's determination that "judicial appraisal is likely to stand on a much surer footing in the context of a specific application" of the MOA. We agree with the district court.

The issue underlying our ripeness inquiry is whether the MOA was adopted in violation of the notice and comment requirement of the APA. See 5 U.S.C. § 553 (1988). Plaintiffs argue that because the MOA is a binding, substantive rule, it is subject to the notice and comment requirements of 5 U.S.C. § 553. They insist that language in the MOA firmly establishes that it is intended to be a binding, substantive norm that changes the existing guidelines. Plaintiffs point to language in the MOA stating that it "must be adhered to" and that it "will [be] use[d] ... when making ... determination[s] of compliance with the Guidelines...." See Memorandum of Agreement between EPA and the Corps 1 (Feb. 6, 1990) (emphasis added). In addition, they contend that the MOA eliminates the Corps discretion, imposing a mandatory compensatory mitigation requirement pursuant to the no net loss policy.

The EPA and the Corps, on the other hand, maintain that the MOA is exempt from the notice and comment requirements because it is either an interpretation of the existing guidelines or a general policy statement. In support of their position, the EPA and the Corps cite language in the MOA suggesting that it is intended to interpret the guidelines and provide guidance to, not bind, the Corps in the consideration of individual permit applications. The EPA and the Corps direct our attention to the following excerpt from the MOA:

"This MOA ... is written to provide guidance for agency field personnel on the type and level of mitigation which demonstrates compliance with requirements in the Guidelines. The policies and procedures discussed herein are consistent with current Section 404 regulatory practices and are provided in response to questions that have been raised about how the Guidelines are implemented. ...