FILED
NOT FOR PUBLICATION MAY 28 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEBBLE LIMITED PARTNERSHIP; No. 14-35845
ALASKA PENINSULA
CORPORATION, D.C. No. 3:14-cv-00097-HRH
Plaintiffs - Appellants,
MEMORANDUM*
v.
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY; DENNIS J.
MCLERRAN, in his official capacity as
Regional Administrator of EPA Region 10,
Defendants - Appellees,
NATURAL RESOURCES DEFENSE
COUNCIL; BRISTOL BAY NATIVE
CORPORATION; TROUT UNLIMITED;
UNITED TRIBES OF BRISTOL BAY;
NUNAMTA AULUKESTAI,
Intervenor-Defendants -
Appellees.
Appeal from the United States District Court
for the District of Alaska
H. Russel Holland, Senior District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted May 14, 2015
Anchorage, Alaska
Before: CANBY, BYBEE, and WATFORD, Circuit Judges.
The facts and procedural posture of this case are known to the parties, and
we do not repeat them here. Plaintiffs-appellants Pebble Limited Partnership and
Alaska Peninsula Corporation appeal from the district court’s order dismissing
their complaint for lack of subject matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1). We affirm the decision of the district court.
The Administrative Procedure Act authorizes the federal courts to review
“final agency action for which there is no other adequate remedy in a court.” 5
U.S.C. § 704. In interpreting this language, the Supreme Court has held that “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.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations
and internal quotation marks omitted). The agency action that the plaintiffs
challenge—EPA Regional Administrator Dennis McLerran’s February 28, 2014
letter announcing the commencement of review proceedings under Section 404(c)
2
of the Clean Water Act, 33 U.S.C. § 1344(c)—did not satisfy either of these
requirements.
The February 28 letter was not the “consummation” of EPA’s
decisionmaking process on any issue. The letter did not state whether or not EPA
will veto the specification of Bristol Bay as a disposal site for dredged or fill
material; it merely indicated that EPA was beginning a review process to decide
that question. The plaintiffs attempt to sidestep this fact by arguing that the letter
constituted a final determination by EPA on the limited issue of whether EPA has
authority to initiate Section 404(c) proceedings before any party has applied to the
Army Corps of Engineers for a discharge permit, but they are incorrect. EPA
decided that it has such authority in 1979, when it adopted regulations interpreting
Section 404 to that effect. See 40 C.F.R. § 231.1(a). The agency simply acted in
accordance with that preexisting interpretation of the statute when it issued the
February 28 letter; the letter was not a new, final decision on the scope of EPA’s
statutory authority.1
1
We do not decide whether, after EPA has taken final agency action, the
plaintiffs could bring a challenge to EPA’s 1979 regulation under this court’s
decision in Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir.
1991). We merely hold that the February 28 letter was not itself final agency
action.
3
Nor did the February 28 letter determine any rights or obligations of the
plaintiffs or otherwise subject them to legal consequences. The plaintiffs argue
that the letter forced them to participate in an agency proceeding that they believe
to be illegal, but participation in a Section 404(c) proceeding is voluntary, and in
any event, an agency’s requiring a party to participate in an agency proceeding is
not the sort of legal consequence indicative of final agency action. See, e.g., FTC
v. Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980). The plaintiffs also point out
that the letter suspended the Corps’ ability to issue them a Section 404 discharge
permit, but this impairment may be only temporary; after the Section 404(c) review
proceeding has concluded, the Corps will be able to issue the plaintiffs a permit
again, assuming that EPA has not chosen to veto specification of Bristol Bay as a
disposal site. That fact distinguishes this case from Sackett v. EPA, where the
Court held that an EPA compliance order was final agency action because, among
many other things, it imposed a severe and indefinite impairment on the Corps’
ability to issue a Section 404 permit for a particular property. See 132 S. Ct. 1367,
1371–72 (2012).
Because the February 28 letter satisfied neither prong of the Bennett test, it
was not final agency action, and the federal courts lack subject matter jurisdiction
to review it. The district court’s judgment is therefore
4
AFFIRMED.2
2
Plaintiffs’ December 11, 2014 motion for judicial notice of a letter from
EPA to Representative Darrell Issa is denied, on the grounds that the letter is
irrelevant to the issue presented in this appeal. See, e.g., Ruiz v. City of Santa
Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (denying request for judicial notice,
in part because information to be noticed did not bear on the “relevant issue”
before the court).
5
FILED
Pebble Limited Partnership v. EPA, No. 14-35845 MAY 28 2015
MOLLY C. DWYER, CLERK
WATFORD, Circuit Judge, concurring: U.S. COURT OF APPEALS
It’s of no consequence in this case, but I question whether the dismissal here
should have been for lack of subject matter jurisdiction. Our court has previously
indicated (albeit without analysis) that 5 U.S.C. § 704’s requirement of final
agency action is jurisdictional, so today’s disposition is certainly consistent with
circuit precedent. See San Luis Unit Food Producers v. United States, 709 F.3d
798, 801 (9th Cir. 2013). But in my view the D.C. Circuit has persuasively
explained why our court’s precedent on this point is wrong. As that court held in
Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), § 704 is not a jurisdiction-
conferring statute. Id. at 183–84. It instead confers, together with § 702, a right of
action under federal law, and district courts have subject matter jurisdiction to
adjudicate such actions under the general federal-question statute, 28 U.S.C.
§ 1331. Id. at 185. A plaintiff’s failure to allege final agency action under § 704
should therefore result in dismissal for failure to state a claim upon which relief
may be granted, not dismissal for lack of subject matter jurisdiction.
Unlike the D.C. Circuit, our court has never fully examined the jurisdictional
status of § 704. In a case where it matters, we should take a fresh look at the issue
without feeling bound by our prior, unreasoned determination. Arbaugh v. Y&H
Corp., 546 U.S. 500, 511 (2006).