Sep 19: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 05-75255, 05-76807. The petitioners are two environmental groups challenging the U.S. EPA's establishment of tolerances for seven pesticides used mostly on fruit and vegetable crops. The Appeals Court in a split (2-1) decision granted the petition in part, denied it in part, and remanded the case to the EPA.
The case involves the regulation of pesticides under two statutes: the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), and the Federal Food, Drug, and Cosmetic Act (FDCA). The Appeals Court notes that in 1996, Congress amended the FDCA by enacting the Food Quality Protection Act (FQPA), Pub. L. No. 104-170, 110 Stat. 1489. One of the key provisions of the FQPA requires the EPA to give special consideration to risks posed to infants and children when establishing pesticide tolerances.
The FQPA directs the EPA to use an additional tenfold margin of safety . . . to take into account potential pre- and post-natal toxicity and completeness of the data with respect to exposure and toxicity to infants and children. EPA may “use a different margin of safety for the pesticide chemical residue only if, on the basis of reliable data, such margin will be safe for infants and children." "Unfortunately," as the Appeals Court points out, the FQPA does not define “reliable data,” and says, "The dispute before us turns on the definition of this term."
Between December 2001 and April 2002, EPA published seven regulations establishing tolerances for the pesticides acetamiprid, fenhexamid, halosulfuron-methyl, isoxadifen-ethyl, mepiquat, pymetrozine, and zetacypermethrin and did not apply the presumptive 10x child safety factor to any of these seven pesticides. EPA reduced the 10x child safety factor to 3x for four of the pesticides (acetamiprid, fenhexamid, isoxadifen-ethyl, and pymetrozine), and did not apply a child safety factor at all for the others.
The majority concluded, "Because the EPA failed to adequately explain the basis for its deviations from the 10x child safety factor for acetamiprid, mepiquat, and pymetrozine, we grant the petitions for review in part and remand to the EPA for further proceedings consistent with this opinion. On all other issues, we deny the petitions for review." The dissenting Justice indicated in part concurring and in part and dissenting, "I agree with the majority’s conclusion that 'the computer modeling used by the EPA to calculate the safety of drinking water was neither contrary to law nor arbitrary and capricious.'" and did not act arbitrarily and capriciously by establishing the pesticide tolerances for acetamiprid, mepiquat, and pymetrozine; but disagreed with the majority’s conclusion that the tolerance regulations for acetamiprid, mepiquat, and pymetrozine must be remanded.
Access the complete opinion (click here).
Tuesday, September 23, 2008
USA v. Capital Tax Corp
Sep 19: In the U.S. Court of Appeals, Seventh Circuit, Case No. 07-3744. Capital Tax Corporation (Capital Tax) is an Illinois company that purchases distressed real estate properties and resells them for profit. At a Cook County scavenger sale in October 2001, Capital Tax successfully bid on tax certificates to a derelict paint factory on the south side of Chicago. Capital Tax claims that it then entered into an agreement to sell the property to a man named Mervyn Dukatt. Pursuant to this alleged contract, Capital Tax exercised its option on the tax deed and delivered possession of the property to Dukatt. Capital Tax retained legal title to the property, however, as security for the remainder of the purchase price. Dukatt never made another payment, leaving Capital Tax with title to an unwanted property.
Both the Chicago Department of the Environment (CDOE) and U.S. EPA were called to the old paint factory after receiving complaints that toxic paint products were leaking out of the factory into nearby streets and sewers. The inspections revealed thousands of rusty and leaking barrels containing hazardous waste. The EPA ordered Capital Tax to dispose of the waste but Capital Tax refused; the EPA cleaned up the site itself.
The Government then initiated the legal action under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for the response costs it incurred. The district court granted summary judgment in favor of the Government on both liability and damages. Capital Tax appealed the decision, raising two basic arguments. (1) it claims that it is not liable under CERCLA because it is not the “owner” of the facility; and (2) even if it is liable, Capital Tax claims that it is only responsible for the cleanup of the parcels it owned.
On the ownership and liability issue the Appeals Court said, "From this record, it is difficult for us to determine whether Capital Tax had a valid and enforceable contract for the sale of land under Illinois law. If there is no valid contract, then Capital Tax is the 'owner' under § 107(a)(1) and is liable under CERCLA. If there is a valid contract and if equitable conversion applies, Capital Tax is not the 'owner' under § 107(a)(1) and is not liable under CERCLA. The case will likely turn on whether the facts show that Dukatt was, in fact, a bona fide buyer."
On the apportionment issue, the appeals Court indicates that, "As the district court noted, Capital Tax’s mistake is in attempting to apportion liability based on where the hazardous materials were located on the day they were removed. Those hazardous materials could easily have originated in another part of the plant. As in the game of 'musical chairs,' the fact that the chemicals came to rest in any particular place when production ended was largely happenstance. . . Because we have commingling, cross-contamination and migration occurring on a site that formerly operated as a single, unitary operation, there is no basis for apportionment. [citing: See Burlington Northern, 520 F.3d at 956-58].
The Appeals Court also ruled, "A 'sufficient cause' for failing to comply is a reasonable belief that one is not liable under CERCLA. See United States v. Barkman . . .Because we are remanding this case to district court on the issue of liability, we find it appropriate to vacate the award of damages. The district court may reassess the issue of penalties, if it deems that action necessary, after resolving the liability issue."
Access the complete opinion (click here).
Both the Chicago Department of the Environment (CDOE) and U.S. EPA were called to the old paint factory after receiving complaints that toxic paint products were leaking out of the factory into nearby streets and sewers. The inspections revealed thousands of rusty and leaking barrels containing hazardous waste. The EPA ordered Capital Tax to dispose of the waste but Capital Tax refused; the EPA cleaned up the site itself.
The Government then initiated the legal action under Section 107(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) for the response costs it incurred. The district court granted summary judgment in favor of the Government on both liability and damages. Capital Tax appealed the decision, raising two basic arguments. (1) it claims that it is not liable under CERCLA because it is not the “owner” of the facility; and (2) even if it is liable, Capital Tax claims that it is only responsible for the cleanup of the parcels it owned.
On the ownership and liability issue the Appeals Court said, "From this record, it is difficult for us to determine whether Capital Tax had a valid and enforceable contract for the sale of land under Illinois law. If there is no valid contract, then Capital Tax is the 'owner' under § 107(a)(1) and is liable under CERCLA. If there is a valid contract and if equitable conversion applies, Capital Tax is not the 'owner' under § 107(a)(1) and is not liable under CERCLA. The case will likely turn on whether the facts show that Dukatt was, in fact, a bona fide buyer."
On the apportionment issue, the appeals Court indicates that, "As the district court noted, Capital Tax’s mistake is in attempting to apportion liability based on where the hazardous materials were located on the day they were removed. Those hazardous materials could easily have originated in another part of the plant. As in the game of 'musical chairs,' the fact that the chemicals came to rest in any particular place when production ended was largely happenstance. . . Because we have commingling, cross-contamination and migration occurring on a site that formerly operated as a single, unitary operation, there is no basis for apportionment. [citing: See Burlington Northern, 520 F.3d at 956-58].
The Appeals Court also ruled, "A 'sufficient cause' for failing to comply is a reasonable belief that one is not liable under CERCLA. See United States v. Barkman . . .Because we are remanding this case to district court on the issue of liability, we find it appropriate to vacate the award of damages. The district court may reassess the issue of penalties, if it deems that action necessary, after resolving the liability issue."
Access the complete opinion (click here).
Friday, September 19, 2008
National Resources Defense Council v. U.S. EPA
Sep 18: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55183, 07-55261. Plaintiffs-Appellees, National Resources Defense Council (NRDC) and Waterkeeper Alliance Inc. (collectively, NRDC), sued Defendants-Appellants, U.S. EPA and its administrator (collectively, EPA), under the Clean Water Act (CWA) and the Administrative Procedure Act (APA), seeking to compel EPA to promulgate effluent limitation guidelines (ELGs) and new source performance standards (NSPSs) for storm water pollution discharges caused by the construction and development industry (construction industry).
The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-intervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA.
The district court exercised its jurisdiction under the Clean Water Act’s citizen-suit provision and denied Defendants’ motion to dismiss; granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry; and issued a permanent injunction compelling EPA to do so. The Appeals Court affirmed the district court decision.
The Appeals Court ruled in part saying, "Despite our conclusion that the EPA had a nondiscretionary duty to promulgate ELGs and NSPSs in this case, we also must consider whether the EPA properly avoided this duty when it removed the construction industry from its plans published pursuant to § 304(m). Nothing in the CWA expressly grants the EPA the authority to remove a point-source category from a § 304(m) plan. . . " The Appeals Court said, first, ". . .once a category is identified under subsection B, the promulgation of guidelines 'shall be no later than . . . 3 years after the publication of the plan.' This timeline effectuates Congress’ stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had the authority to delist point-source categories at its whim, however, this deadline would be rendered meaningless as the EPA could delist any point-source category to avoid the deadline set forth in § 304(m)(1)(c)."
Secondly, the Appeals Court said, "Congress determined that by the time a point-source category is listed in a § 304(m) plan, the EPA must have already engaged in a review process to consider whether the category should be listed. It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be."
NRDC issued a release on the decision and said it will help to ensure that construction site pollution won’t cause beach closings, waterborne disease, flooding, fish kills and contaminated drinking water supplies. Melanie Shepherdson, staff attorney at NRDC said, “This decision will go along way towards protecting America’s streams and rivers from the construction and development industry. The court made it very clear that EPA can’t just shirk its responsibilities to reign in pollution from this industry.”
Access the complete opinion (click here). Access the release from NRDC (click here).
The States of Connecticut and New York, and the New York State Department of Environmental Conservation (collectively, state-intervenors) intervened on behalf of NRDC; the National Association of Home Builders and Associated General Contractors of America (collectively, industry-intervenors) intervened on behalf of the EPA.
The district court exercised its jurisdiction under the Clean Water Act’s citizen-suit provision and denied Defendants’ motion to dismiss; granted Plaintiffs partial summary judgment on their claim that the CWA requires the EPA to issue ELGs and NSPSs for the construction industry; and issued a permanent injunction compelling EPA to do so. The Appeals Court affirmed the district court decision.
The Appeals Court ruled in part saying, "Despite our conclusion that the EPA had a nondiscretionary duty to promulgate ELGs and NSPSs in this case, we also must consider whether the EPA properly avoided this duty when it removed the construction industry from its plans published pursuant to § 304(m). Nothing in the CWA expressly grants the EPA the authority to remove a point-source category from a § 304(m) plan. . . " The Appeals Court said, first, ". . .once a category is identified under subsection B, the promulgation of guidelines 'shall be no later than . . . 3 years after the publication of the plan.' This timeline effectuates Congress’ stated desire to force the EPA to more rapidly promulgate ELGs and NSPSs. If the EPA had the authority to delist point-source categories at its whim, however, this deadline would be rendered meaningless as the EPA could delist any point-source category to avoid the deadline set forth in § 304(m)(1)(c)."
Secondly, the Appeals Court said, "Congress determined that by the time a point-source category is listed in a § 304(m) plan, the EPA must have already engaged in a review process to consider whether the category should be listed. It follows logically that the three-year delay provided for in § 304(m)(1)(c) is not to decide whether to list a point-source category, but to allow the EPA to consider what the substance of the ELGs and NSPSs should be."
NRDC issued a release on the decision and said it will help to ensure that construction site pollution won’t cause beach closings, waterborne disease, flooding, fish kills and contaminated drinking water supplies. Melanie Shepherdson, staff attorney at NRDC said, “This decision will go along way towards protecting America’s streams and rivers from the construction and development industry. The court made it very clear that EPA can’t just shirk its responsibilities to reign in pollution from this industry.”
Access the complete opinion (click here). Access the release from NRDC (click here).
Fund For Animals v. Kempthorne (Interior Department)
Sep 18: In the U.S. Court of Appeals, Second Circuit, Case No. 05-2603. In this case the Plaintiffs appeal from a decision of the district court that granted defendants, Department of Interior, Fish and Wildlife Service (FWS), a summary judgment and dismissing plaintiffs' claims challenging the defendants' Public Resource Depredation Order, 50 C.F.R. § 21.48, as a violation of treaty obligations and Federal statutes. The Appeals Court affirmed the decision of the district court.
The case involves double-crested cormorants (cormorants). The birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by Federal statutes and regulations. The Fish and Wildlife Service (FWS) has been delegated primary responsibility for regulating migratory birds, including cormorants. [See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003)].
The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture . . . employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." The Depredation Order was issued because When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species.
In its decision the Appeals Court ruled that "the Depredation Order does not violate the Migratory Bird Treaty Act the MBTA," and it accepts the agency's view regarding compliance with the Mexico Convention; "the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence available to the FWS, and the FWS has explained its reasons for choosing one rational response over others"; and the "FWS did not violate NEPA by omitting site-specific analyses in this case."
Access the complete opinion (click here).
The case involves double-crested cormorants (cormorants). The birds are not protected by the Endangered Species Act, 16 U.S.C. § 1531 et seq., but their treatment is regulated by international treaties to which the United States is a party, and by Federal statutes and regulations. The Fish and Wildlife Service (FWS) has been delegated primary responsibility for regulating migratory birds, including cormorants. [See Migratory Bird Permits; Regulations for Double-Crested Cormorant Management, 68 Fed. Reg. 12,653, 12,653 (Mar. 17, 2003)].
The plaintiffs brought this action to challenge the Depredation Order, which, they allege, violates the relevant treaties and statutes by "authoriz[ing] state fish and wildlife agencies, Indian Tribes, and U.S. Department of Agriculture . . . employees to kill an unlimited number of federally protected double-crested cormorants in New York and twenty-four other States, without any restrictions on time of year or location of the killings, without any advance notice to the FWS, and without any showing of specific, localized harm caused by the cormorants." The Depredation Order was issued because When migratory birds converge in large numbers, they may consume large quantities of local plants, fish, or other species. In doing so, they may harm commercial activity dependent on those species.
In its decision the Appeals Court ruled that "the Depredation Order does not violate the Migratory Bird Treaty Act the MBTA," and it accepts the agency's view regarding compliance with the Mexico Convention; "the Depredation Order represents one rational response to the problem of cormorant depredation based on evidence available to the FWS, and the FWS has explained its reasons for choosing one rational response over others"; and the "FWS did not violate NEPA by omitting site-specific analyses in this case."
Access the complete opinion (click here).
Wednesday, September 17, 2008
Missouri Coalition For The Environment. v. U.S. Corps of Engineers
Sep 16: In the U.S. Court of Appeals, Eighth Circuit, Case No. 07-2218. In this case, the Missouri Coalition seeks disclosure of a number of documents from the U.S. Army Corps of Engineers under the Freedom of Information Act (FOIA). The district court granted summary judgment in favor of the Corps on the basis that the "deliberative process privilege," 5 U.S.C. § 552(b)(5), exempts all 83 documents responsive to the request. The documents related to the Upper Mississippi River System Flow Frequency Study (UMRSFFS) designed to identify the 100-and 500-year flood plains. The Coalition appealed the district court judgment and the Appeals Court remanded the case for further proceedings.
According to the Corps each and every document was identified as "privileged under FOIA Exemption 5, the Deliberative Process Privilege." The Coalition argued that the Corps had failed to prove that the documents were exempt from disclosure. The case revolves around the so-called "Vaughn index" which is designed to "help determine whether a governmental agency has discharged its burden under FOIA" and evolves from the Vaughn court, i.e. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Vaughn indices serve two purposes: First, to ensure an “effectively helpless” party’s right to information “is not submerged beneath governmental obfuscation and mischaracterization” and second, to “permit the court system effectively and efficiently to evaluate the factual nature of disputed information.”
The Coalition argues that, viewed in the light most favorable to the Coalition, the Corps’ Vaughn index is insufficient to show whether the Corps’ obligations under FOIA were discharged. As a result, the Coalition posits, some of the documents should have been released. Alternatively, the Coalition proposes that even if the Vaughn index is adequate, some of the documents – in whole or in part – are not subject to the exemption. The Corps contends that it satisfied its FOIA obligations with an adequate Vaughn index that properly demonstrated the documents were subject to the deliberative process privilege.
The Appeals Court said that sworn declarations from Corps staffers provided adequate additional information to the Vaughn index to explain why the documents should be exempt. For example, one affidavit submitted indicated, "These communications are exempt from disclosure under Exemption 5 because they are predecisional and part of the deliberative process. They involve the give-and-take that is inherent in such a study process. . ."
The Coalition argues that the prior release of some of the documents, in whole or part, destroys the credibility of the index and affidavits. The Appeals Court said, "We are not persuaded that the fact the UMRSFFS report was ultimately released and that some of the information in the final report was contained in the requested documentation affects the deliberative or predecisional nature of the requested documents. We therefore conclude the Vaughn index is sufficient to establish that some of the information requested is, in fact, exempted by the deliberative process privilege. However, because the district court failed to analyze the segregability of the documents, we cannot conclude at this time that the privilege applied, as the district court concluded, to all 83 responsive documents in their entirety. . . Here, the district court made no findings on the issue of segregability. Although the issue was properly raised and preserved for appeal, we are unable to determine from the record whether the issue was considered and rejected or not considered at all. Therefore, we must remand the case for a segregability analysis consistent with this opinion."
Access the complete opinion (click here).
According to the Corps each and every document was identified as "privileged under FOIA Exemption 5, the Deliberative Process Privilege." The Coalition argued that the Corps had failed to prove that the documents were exempt from disclosure. The case revolves around the so-called "Vaughn index" which is designed to "help determine whether a governmental agency has discharged its burden under FOIA" and evolves from the Vaughn court, i.e. Vaughn v. Rosen, 484 F.2d 820, 826 (D.C. Cir. 1973). Vaughn indices serve two purposes: First, to ensure an “effectively helpless” party’s right to information “is not submerged beneath governmental obfuscation and mischaracterization” and second, to “permit the court system effectively and efficiently to evaluate the factual nature of disputed information.”
The Coalition argues that, viewed in the light most favorable to the Coalition, the Corps’ Vaughn index is insufficient to show whether the Corps’ obligations under FOIA were discharged. As a result, the Coalition posits, some of the documents should have been released. Alternatively, the Coalition proposes that even if the Vaughn index is adequate, some of the documents – in whole or in part – are not subject to the exemption. The Corps contends that it satisfied its FOIA obligations with an adequate Vaughn index that properly demonstrated the documents were subject to the deliberative process privilege.
The Appeals Court said that sworn declarations from Corps staffers provided adequate additional information to the Vaughn index to explain why the documents should be exempt. For example, one affidavit submitted indicated, "These communications are exempt from disclosure under Exemption 5 because they are predecisional and part of the deliberative process. They involve the give-and-take that is inherent in such a study process. . ."
The Coalition argues that the prior release of some of the documents, in whole or part, destroys the credibility of the index and affidavits. The Appeals Court said, "We are not persuaded that the fact the UMRSFFS report was ultimately released and that some of the information in the final report was contained in the requested documentation affects the deliberative or predecisional nature of the requested documents. We therefore conclude the Vaughn index is sufficient to establish that some of the information requested is, in fact, exempted by the deliberative process privilege. However, because the district court failed to analyze the segregability of the documents, we cannot conclude at this time that the privilege applied, as the district court concluded, to all 83 responsive documents in their entirety. . . Here, the district court made no findings on the issue of segregability. Although the issue was properly raised and preserved for appeal, we are unable to determine from the record whether the issue was considered and rejected or not considered at all. Therefore, we must remand the case for a segregability analysis consistent with this opinion."
Access the complete opinion (click here).
NRDC v. Winter (Department of Navy)
Sep 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55294. Defendant-Appellant, Donald C. Winter (the Navy), appealed the district court’s decision to award attorneys’ fees to Plaintiffs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Navy claimed that: (1) the amount of the award for some of the attorneys working on the case should not have been enhanced above the statutory rate; (2) the limited extent of Plaintiffs’ success merited a reduction in fees; and, (3) the award of appellate fees was improper because the fee application was filed in the district court, not in the court of appeals.
The Appeals Court said, "We conclude that the district court did not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of
law, we vacate the district court’s order awarding fees and remand for additional fact finding and recalculation of fees in accordance with this opinion."
The Appeals Court summarized, "In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consolidated into a three-part test the relevant law governing what must be proven in order to be awarded enhanced attorneys’ fees: (1) 'the attorney must possess distinctive knowledge and skills developed through a practice specialty;' (2) 'those distinctive skills must be needed in the litigation;' and (3) 'those skills must not be available elsewhere at the statutory rate.' Id. at 1496. . .we remand this case to the district court for reconsideration consistent with this opinion to determine whether the Plaintiffs have met their burden of proof under the third prong of Love. If not, the district court should recalculate fees for the Plaintiffs as required. On remand, the district court should also recalculate fees for the junior Irell attorneys at the statutory rate, plus a cost of living increase."
Access the complete opinion (click here).
The Appeals Court said, "We conclude that the district court did not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of
law, we vacate the district court’s order awarding fees and remand for additional fact finding and recalculation of fees in accordance with this opinion."
The Appeals Court summarized, "In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consolidated into a three-part test the relevant law governing what must be proven in order to be awarded enhanced attorneys’ fees: (1) 'the attorney must possess distinctive knowledge and skills developed through a practice specialty;' (2) 'those distinctive skills must be needed in the litigation;' and (3) 'those skills must not be available elsewhere at the statutory rate.' Id. at 1496. . .we remand this case to the district court for reconsideration consistent with this opinion to determine whether the Plaintiffs have met their burden of proof under the third prong of Love. If not, the district court should recalculate fees for the Plaintiffs as required. On remand, the district court should also recalculate fees for the junior Irell attorneys at the statutory rate, plus a cost of living increase."
Access the complete opinion (click here).
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).
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).
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