Monday, September 15, 2008

Fairbanks Northstar Borough v. U.S. Army Corps of Engineers

Sep 12: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35545. 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 U.S. EPA. In the case, 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. The Appeals Court affirmed the district court’s dismissal on the pleadings for lack of jurisdiction and said, "The Corps’ approved jurisdictional determination is not final agency action within the meaning of the Administrative Procedure Act (APA), 5 U.S.C. § 704."

By way of background the Appeals Court cites recent noted Supreme Court decisions saying, “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 (2006) (plurality opinion). . . “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, 531U.S. 159, 163 (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).

Following a Corps issued “preliminary” jurisdictional determination finding that Fairbanks’ entire parcel [2.1 acre proposed recreation area] contained wetlands, Fairbanks requested that the Corps provide an “approved” jurisdictional determination. The Corps obliged Fairbanks and said, "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. . ." Fairbanks brought the suit to set aside the Corps’ approved jurisdictional determination contending "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.'"

In its opinion, the Appeals Court said, "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." The Appeals Court cites Bennett v. Spear, 520 U.S. 154, 177-78
(1997) saying, "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.”

Then, the Appeals Court rules, "The approved jurisdictional determination represented the Corps’ definitive administrative position that Fairbanks’ property contained wetlands. But, . . . it did not ‘impose an obligation, deny a right, or fix some legal relationship'. . . Because finality is a jurisdictional requirement to obtaining judicial review under the APA, the district court correctly dismissed Fairbanks’ action. . . We do not reach the issues of ripeness and statutory preclusion of judicial review."

Access the complete opinion (
click here).