New Cert Petition - Corps' Clean Water Jurisdiction Determination Is Reviewable Now

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 for a playground, athletic fields, and associated infrastructure, and asked the Corps for a determination whether any of the property was "wetlands."  The Corps replied that the entire parcel was wetlands and was 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 its administrative remedies, then challenged the determination in federal court asserting the wetlands determination was erroneous. The district court granted judgment on the pleadings to the Corps, holding that the jurisdictional determination was not "final agency action" under the APA and the court therefore had no jurisdiction.

The Ninth Circuit held the Corps' jurisdictional determination was not "tentative" or "interlocutory" and satisfied the first part of the two-part test for whether an agency action is judicially reviewable.  Slip op. at 12745 - 12748.  However, the Ninth Circuit held the Corps' action did not satisfy the second part of the test because it did not "impose an obligation, deny a right, or fix some legal relationship."  Slip op. at 12744 - 12745 (quoting Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264 (9th Cir. 1990)). The court held "Fairbanks' rights and obligations remain unchanged by the approved jurisdictional determination. The court agreed that if the borough were to stick to its guns and developed its property without a 404 permit, "now that Fairbanks is on the Corps' radar screen," it is at least plausible that Fairbanks would be subject to an enforcement action.  "Whatever Fairbanks now chooses to do, it will be no more or less in violation of the CWA than if it had never requested an approved jurisdictional determination."  Slip op. at 12753.

The cert petition contains 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.