An Alaska borough has sought Supreme Court review of the Ninth Circuit’s determination in Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008) (a decision we analyzed here). The cert petition is posted here (No. 08-1052).
The Ninth Circuit held a property owner has two choices when faced with what it believes is an erroneous determination by the Corps of Engineers that property contains wetlands: either (1) apply for a very expensive Clean Water Act permit, or (2) don’t get a permit and challenge the Corps’ jurisdiction when the federal government brings criminal or civil charges. The court held that since the Corps’ jurisdictional determination is not a final agency action, the property owner cannot immediately challenge it under the Administrative Procedures Act.
The borough wanted to develop a parcel fora playground, athletic fields, and associated infrastructure, and askedthe Corps for a determination whether any of the property was”wetlands.” The Corps replied that the entire parcel was wetlands andwas subject to regulation under the CWA. In other words,before the borough could place any fill material on the property, it was required to obtain a section 404 permit from the Corps. The borough exhausted itsadministrative remedies, then challenged the determination in federal courtasserting the wetlands determination was erroneous. The districtcourt granted judgment on the pleadings to the Corps, holding that thejurisdictional determination was not “final agency action” under theAPA and the court therefore had no jurisdiction.
The Ninth Circuit held the Corps’ jurisdictional determinationwas not “tentative” or “interlocutory” and satisfied the first part ofthe two-part test for whether an agency action is judiciallyreviewable. Slip op. at 12745 – 12748. However, the Ninth Circuit held the Corps’ action did not satisfy the second part of the test becauseit did not “impose an obligation, deny a right, or fix some legalrelationship.” Slip op. at 12744 – 12745 (quoting Ukiah Valley Med. Ctr. v. FTC,911 F.2d 261, 264 (9th Cir. 1990)). The court held “Fairbanks’ rightsand obligations remain unchanged by the approved jurisdictionaldetermination. The court agreed that if the borough were to stick to itsguns and developed its property without a 404 permit, “nowthat Fairbanks is on the Corps’ radar screen,” it is at least plausiblethat Fairbanks would be subject to an enforcement action. “WhateverFairbanks now chooses to do, it will be no more or less in violation ofthe CWA than if it had never requested an approved jurisdictionaldetermination.” Slip op. at 12753.
The cert petitioncontains a single Question Presented:
Is a Jurisdictional Determination under the Clean Water Act, finding that Petitioner’s property is subject to that Act’s strictures, a “final agency action” subject to judicial review under the Administrative Procedure Act, where the Jurisdictional Determination: (1) affords the landowner a viable estoppel defense in a future enforcement action; (2) decides whether a CWA permit is necessary; and (3) subjects the landowner to elevated penalties?
The federal government’s response is due March 23, 2009. More on the case from a local newspaper here.