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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 11, 2008 Decided February 19, 2008
No. 07-5060
P & V ENTERPRISES, ET AL.,
APPELLANTS
v.
U.S. ARMY CORPS OF ENGINEERS, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 05cv01579)
John A. Hodges argued the cause for appellants. With him
on the briefs were Eric S. Andreas and Andrew M. Miller.
Anna T. Katselas, Attorney, U.S. Department of Justice,
argued the cause for appellees. With her on the brief were
Katherine W. Hazard and Eileen T. McDonough, Attorneys. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
2
Before: ROGERS and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The issue on appeal is whether the
U.S. Army Corps of Engineers (“Corps”) reopened
consideration of a 1986 rule such that the district court erred in
dismissing a facial challenge to the rule as untimely under 28
U.S.C. § 2401(a). We affirm.
I.
Section 404 of the Clean Water Act (“CWA”) authorizes
the Corps to regulate the discharge of dredged and fill material
into “navigable waters,” which are “the waters of the United
States, including the territorial seas.” 33 U.S.C. §§ 1344,
1362(7). In 1986, the Corps promulgated a definition of “waters
of the United States.”1 51 Fed. Reg. 41,210, 41,216-17, 41,250
1
As defined by the Corps, the term “waters of the United
States” includes, but is not limited to, the following:
waters such as intrastate lakes, rivers, streams (including
intermittent streams), mudflats, sandflats, wetlands, sloughs,
prairie potholes, wet meadows, playa lakes, or natural ponds,
the use, degradation or destruction of which could affect
interstate or foreign commerce including any such waters:
(i) Which are or could be used by interstate or foreign
travelers for recreational or other purposes; or
(ii) From which fish or shellfish are or could be taken
and sold in interstate or foreign commerce; or
(iii) Which are used or could be used for industrial
purpose by industries in interstate commerce . . . .
3
(Nov. 13, 1986) (codified at 33 C.F.R. § 328.3(a)(3)) (“the 1986
rule”). In 2001, the Supreme Court held that the Corps had
exceeded its authority under section 404(a) in promulgating the
Migratory Bird Rule as applied to “an abandoned sand and
gravel pit.” Solid Waste Agency of N. Cook County v. U.S. Army
Corps of Eng’rs (“SWANCC”), 531 U.S. 159, 174 (2001).
Because that rule raised “significant constitutional questions” by
“invok[ing] the outer limits of Congress’ power” under the
Commerce Clause, the Court held that “a clear indication” of
Congressional intent was required and there was none. Id. at
172.
In January 2003, the Corps issued an Advance Notice of
Proposed Rulemaking (“ANPRM”), 68 Fed. Reg. 1991 (Jan. 15,
2003). Its summary section stated:
Today’s ANPRM requests public input on issues
associated with the definition of “waters of the United
States” and also solicits information or data from the
general public, the scientific community, and Federal
and State resource agencies on the implications of the
SWANCC decision for jurisdictional decisions under
the CWA. The goal . . . is to develop proposed
regulations that will further the public interest by
clarifying what waters are subject to CWA jurisdiction
and affording full protection to these waters . . . . The
input received from the public in response to today’s
ANPRM will be used by the [Corps] to determine the
issues to be addressed and the substantive approach for
a future proposed rulemaking addressing the scope of
33 C.F.R. § 328.3(a)(3). Although Environmental Protection Agency
has promulgated a comparable definition, see 40 C.F.R. § 232.2, and
joined the Corps in issuing the 2003 statements that we discuss infra,
because it is not an appellee, the opinion refers only to the Corps.
4
CWA jurisdiction. Pending this rulemaking, should
questions arise, the regulated community should seek
assistance from the Corps . . . .
Id. at 1991 (emphasis added). An accompanying memorandum
contained “clarifying guidance regarding [SWANCC],” advising
that “more refined factual and legal analysis will be required to
make a jurisdictional determination” under the 1986 rule for
certain waters and instructing staff to obtain prior Headquarters’
approval. Id. at 1996, 1997-98. Approximately 130,000
comments were received. On December 16, 2003, the Corps
issued a one-page Press Release announcing that it “would not
issue a new rule on federal regulatory jurisdiction over isolated
wetlands.” Press Release, U.S. Army Corps of Eng’rs & U.S.
Envtl. Prot. Agency, EPA, Corps of Engineers Issue Wetlands
Decision, at 1 (Dec. 16, 2003).
On August 5, 2005, P&V Enterprises, Friendly Valley
Equestrian Homes, SCC Acquisitions, Inc., and SunCal
Martinville LLC (hereafter “P&V”) filed suit, challenging the
1986 rule’s definition of “waters of the United States” as
“facially invalid” under the Commerce Clause. Compl. ¶ 40.
The complaint alleged that the Corps had overstepped its
authority in asserting jurisdiction over the Mojave River, which
is an “isolated, intrastate” river. Id. ¶ 16. As owners or intended
developers of approximately 8,000 acres of “desert land” that
includes several “ephemeral” tributaries to the Mojave River,
near Barstow, California, P&V asserted economic injury and
that it faced the “classic Hobson’s choice” of submitting to
costly regulation or paying enforcement penalties. Id. ¶ 34. The
Corps moved to dismiss the complaint pursuant to FED. R. CIV.
P. 12(b)(1) for lack of subject-matter jurisdiction, asserting
sovereign immunity and, alternatively, that if the complaint
stated a claim under the Administrative Procedure Act (“APA”)
it was untimely under 28 U.S.C. § 2401(a). P&V responded that
5
the APA’s waiver of sovereign immunity applied regardless
whether it was stating an APA claim, Chamber of Commerce v.
Reich, 74 F.3d 1322, 1328 (D.C. Cir. 1996), that section 2401(a)
was not jurisdictional in view of Irwin v. Department of
Veterans Affairs, 498 U.S. 89 (1990), and that the Corps had
reopened the 1986 rule for facial challenge by issuing the
ANPRM and Press Release in 2003. The district court dismissed
the complaint for failure to state a claim, relying on section
2401(a). P&V Enters. v. U.S. Army Corps of Eng’rs, 466 F.
Supp. 2d 134, 147 (D.D.C. 2006). P&V appeals and our review
is de novo. Felter v. Kempthorne, 473 F.3d 1255, 1259 (D.C.
Cir. 2007).
II.
Section 2401(a) provides that: “[E]very civil action
commenced against the United States shall be barred unless the
complaint is filed within six years after the right of action first
accrues.” 28 U.S.C. § 2401(a). This court has held that “[t]he
right of action first accrues on the date of the final agency
action.” Harris v. FAA, 353 F.3d 1006, 1010 (D.C. Cir. 2004).
Because P&V did not challenge the 1986 rule until 2005, it
relies on the reopening doctrine.
The reopening doctrine allows an otherwise stale challenge
to proceed because “the agency opened the issue up anew,” and
then “reexamined . . . and reaffirmed its [prior] decision.” Pub.
Citizen v. Nuclear Reg. Comm’n, 901 F.2d 147, 150-51 (D.C.
Cir. 1990) (quoting Ass’n of Am. R.R. v. Interstate Commerce
Comm’n, 846 F.2d 1465, 1473 (D.C. Cir. 1988)). The doctrine
only applies, however, where “the entire context,” id. at 150,
demonstrates that the agency “ha[s] undertaken a serious,
substantive reconsideration of the [existing] rule,” Nat’l Mining
Ass’n v. U.S. Dep’t of Interior, 70 F.3d 1345, 1352 (D.C. Cir.
1995). It is designed “to ensure that ‘when the agency . . . by
6
some new promulgation creates the opportunity for renewed
comment and objection,’ affected parties may seek judicial
review, even when the agency decides not to amend the long-
standing rule at issue.” Gen. Motors Corp. v. EPA, 363 F.3d
442, 449-50 (D.C. Cir. 2004) (quoting State of Ohio v. EPA, 838
F.2d 1325, 1328 (D.C. Cir. 1988)). We conclude that the Corps’
statements in the 2003 notices do not demonstrate final agency
action under the reopening doctrine.
First, the January 2003 ANPRM did not set forth for public
comment the Corps’ views on the 1986 rule at all, much less its
views in the form of a proposed rulemaking. The ANPRM
requested information and data from interested parties so that
the Corps could determine upon consideration of the responses
whether to take any further action in view of SWANCC. The
occasion for the ANPRM was, as P&V acknowledges, the
Supreme Court’s decision in SWANCC, not any Corps decision
to reconsider the 1986 rule. See, e.g., 68 Fed. Reg. at 1991-93.
That was, as the name of the ANPRM indicated, merely a
possible next step. Although the ANPRM stated that the Corps
“ha[d] not engaged in a review of the regulations with the public
concerning CWA jurisdiction for some time,” it went on to
make clear that this request for comment was limited to a
request for “early estimates of potential resource implications of
the SWANCC decision.” Id. at 1993-94. In particular, the Corps
sought “information, data, or studies addressing the extent of
resource impacts to isolated, intrastate, non-navigable waters”;
“information regarding the functions and values of wetlands and
other waters that may be affected by the issues discussed in this
ANPRM”; and “scientific and technical studies and data,
analysis of environmental impacts, effects on interstate
commerce, other impacts, etc.” Id. at 1994.
Second, although referring to the 1986 rule and other
regulations, the ANPRM did not suggest that the Corps
7
considered the substance of the rule to be in doubt in any precise
manner, as has been found to be a factor that may show
reopening. For example, in Edison Electric Institute v. EPA,
996 F.2d 326, 330 (D.C. Cir. 1993), the agency issued a notice
of proposed rulemaking that both discussed “concerns that some
legitimate [use] technically may be prohibited [by the existing
rule]” and requested “comment on alternative approaches”
regarding the regulation, providing specific substantive
examples for comment. By contrast, the ANPRM did not
suggest a similar level of commitment of agency resources had
occurred, but at most indicated that a substantive proposal for
review might follow consideration of “public input on what, if
any, revisions in light of SWANCC might be appropriate to the
regulations,” 68 Fed. Reg. at 1992, including “comment on the
use of the factors” in the 1986 rule, id. at 1994.
Third, the fact that the ANPRM neither offered a proposed
rule nor “h[eld] out the unchanged section as [such], offering an
explanation for its language, [and] soliciting comments on its
substance,” also weighs against a reopening. See Am. Iron &
Steel Inst. v. EPA, 886 F.2d 390, 397-98 (D.C. Cir. 1989) (citing
State of Ohio, 838 F.2d at 1328). The ANPRM anticipated only
that the Corps might “develop [a] proposed regulation[].” 68
Fed. Reg. at 1991. In other words, the ANPRM was no more
than a broadly stated request for information and comment in
light of a recent judicial opinion. Id. at 1994. Although “a
specific modification proposal” is not a prerequisite for a
reopening, Nat’l Ass’n of Reversionary Property Owners v.
Surface Transp. Bd., 158 F.3d 135, 142 (D.C. Cir. 1998), the
ANPRM did not purport to represent the Corps’ considered
reevaluation and updated judgment on the substance of the 1986
rule. Instead it sought information so that the Corps would be
in a position to make substantive decisions about how to proceed
after considering the responses. Specifically, the submitted
comments would be used by the Corps “to determine the issues
8
to be addressed and the substantive approach for a future
proposed rulemaking.” 68 Fed. Reg. at 1991. Publishing the
ANPRM was comparable to requesting comment on a petition
for commencement of a rulemaking as the Corps “has itself said
nothing on the merits.” See Nat’l Mining, 70 F.3d at 1351.
Viewed from the starting point, then, the ANPRM did not
represent the Corps’ reconsideration of the definition in the 1986
rule but an effort to gather information so that the Corps could
better assess whether SWANCC required it to modify the
definition.
Fourth, the December 2003 Press Release was not “the
consummation of the [Corps’] decisionmaking process,”
Appellants’ Br. at 24, as would constitute a final agency action
taken to reaffirm the existing rule. Assuming that a press release
could suffice, it must serve as a “promulgation” that embodies
the agency’s resolution of its reexamination of a rule and
constitutes sufficient new agency action to restart the limitations
period. Gen. Motors, 363 F.3d at 450 (citing CropLife Am. v.
EPA, 329 F.3d 876, 884 (D.C. Cir. 2003); Edison Elec., 996
F.2d at 331-32); see Sendra Corp. v. Magaw, 111 F.3d 162, 167
(D.C. Cir. 1997); Pub. Citizen, 901 F.2d at 151. The Press
Release stated only that the Corps had decided “not [to] issue a
new rule on federal regulatory jurisdiction over isolated
wetlands,” and instead, “to continue our efforts to ensure that the
Corps’ regulatory program is as effective, efficient and
responsive as it can be.” 2003 Press Release at 1. It made no
mention of a reexamination of the 1986 rule by the Corps, much
less offered any rationale for reaffirming the rule. In asserting
that the Corps would “preserve the federal government’s
authority to protect our wetlands,” “continue to monitor
implementation of this important program to ensure its
effectiveness,” and “reaffirm[] federal jurisdiction over the
majority of wetlands not impacted by the [SWANCC] decision,”
id., the Press Release had none of the indicia of a specific
9
statement explaining the agency’s reasoning for retaining a
particular rule or of new final action taken regarding any
existing rule. It neither responded to comments nor presented
new justifications for retaining the 1986 rule, as in CTIA-The
Wireless Ass’n v. FCC, for example, where the agency
“offer[ed] two new justifications [for the rule] not found in
[prior orders]” that “constituted the [agency’s] first legal
rationales for its action to date.” 466 F.3d 105, 112 (D.C. Cir.
2006); see Bluewater Network v. EPA, 370 F.3d 1, 17 (D.C. Cir.
2004); PanAmSat Corp. v. FCC, 198 F.3d 890, 897 (D.C. Cir.
1999); State of Ohio, 838 F.2d at 1328. The Press Release also
provided no insight into whether the Corps had rethought the
policy underlying the 1986 rule. See Nat’l Mining, 70 F.3d at
1351. Indeed, the contents of the Press Release might indicate
that the Corps simply concluded that the administrative costs of
a rulemaking proceeding outweighed any potential gains.
Viewed from the end point, then, the Press Release was silent
with respect to any substantive Corps decision in the nature of
a reconsideration. See Gen. Motors, 363 F.3d at 450. Were the
court to view the absence of evidence of “renewed adherence,”
Am. R.R., 846 F.2d at 1473, as sufficient to overcome a statute
of limitations, P&V fails to suggest what limits would exist to
bar stale claims.
Moreover, developing guidance on wetlands regulations
further supports the conclusion that the 2003 Press Release did
not constitute final agency action reopening the 1986 rule. The
SWANCC Guidance accompanying the ANPRM made clear that
the Corps’ jurisdictional determinations under the rule will be
issued on a case-by-case basis with Headquarters’ direct
involvement. 68 Fed. Reg. at 1996, 1997-98. It suggested that
if “questions arise concerning CWA jurisdiction, the regulated
community should seek assistance from the Corps . . . .” Id. at
1996. Serving mainly as a source of information on recent court
decisions, the Guidance memorandum was not itself a decisional
10
document. See id. at 1996 n.1; Cement Kiln Recycling Coal. v.
EPA, 493 F.3d 207, 227-28 (D.C. Cir. 2007). Four years later,
the Corps offered guidance on Rapanos v. United States, 547
U.S. 715 (2006) (plurality), that essentially repeated the 2003
case-by-case advice and offered no further insight into how the
Corps might apply the 1986 rule. Any evaluation of the Corps’
CWA jurisdiction thus appears to be far from complete.
Under the circumstances, the ANPRM and the Press Release
did not constitute final agency action reopening the 1986 rule.
The Corps’ statements in 2003 could hardly be more different
from the situation in which an agency has announced that it
would undertake substantive reconsideration of its regulations
under specific circumstances – such as during a formal
evaluation period with a set time and format – and then has done
so. See, e.g., Edison Elec., 996 F.2d at 332; Pub. Citizen, 901
F.2d at 149, 151. The plain text of the ANPRM indicated that
the Corps was considering its options and seeking information
to assist it in deciding on the possibility of a future proposed
rule, while in the meantime continuing to apply the 1986 rule on
a case-by-case basis. The ANPRM was a preparatory step,
antecedent to a potential future rulemaking, not itself a decision
to reconsider the 1986 rule. The potential next step never
occurred, as demonstrated by the Press Release and the open-
ended guidance. The Corps’ extension of the comment period
and the volume of comments that the Corps stated it would
carefully consider do not help P&V’s argument, for an agency
must be able to initiate a public dialogue without inadvertently
reopening established precedent, or its communications with the
public would be unnecessarily stifled. See Gen. Motors, 363
F.3d at 449, 453; Indep. Equip. Dealers Ass’n v. EPA, 372 F.3d
420, 428 (D.C. Cir. 2004). Nonetheless, our conclusion that
P&V’s facial challenge to the 1986 rule is untimely does not
immunize the rule from all challenge: If the Corps applies the
rule to P&V’s property, or denies its petition to amend or
11
rescind the rule, then P&V would be able to challenge the rule
notwithstanding that the limitations period has run. See Cellular
Telecomms. & Internet Ass’n v. FCC, 330 F.3d 502, 508 (D.C.
Cir. 2003); NLRB Union v. Fed. Labor Relations Auth., 834 F.2d
191, 195-96 (D.C. Cir. 1987).
Accordingly, we affirm the dismissal of P&V’s facial
challenge to the 1986 rule for lack of subject-matter jurisdiction,
rather than for failure to state a claim. See FED. R. CIV. P.
12(b)(1). The court has long held that section 2401(a) creates “a
jurisdictional condition attached to the government’s waiver of
sovereign immunity.” Spannaus v. U.S. Dep’t of Justice, 824
F.2d 52, 55 (D.C. Cir. 1987) (citing United States v. Mottaz, 476
U.S. 834, 841 (1986); Soriano v. United States, 352 U.S. 270,
276 (1957)); see Kendall v. Army Bd. for Corr. of Military
Records, 996 F.2d 362, 366 (D.C. Cir. 1993); cf. Nat’l Mining,
70 F.3d at 1350. On appeal, neither P&V nor the Corps has
challenged this circuit’s precedent; therefore, we need not
question our prior authority. See LaShawn A. v. Barry, 87 F.3d
1389, 1395 (D.C. Cir. 1996) (en banc). Consequently, the court
has no occasion to address potential implications of recent
Supreme Court decisions,2 and no need to reach the Corps’
alternative objection that P&V lacks standing.3
2
See, e.g., Felter, 473 F.3d at 1260 (dictum) (citing Irwin,
498 U.S. at 95-96; Harris, 353 F.3d at 1013 n.7 (dictum)); see also
John R. Sand & Gravel Co. v. United States, 128 S. Ct. 750, 755-56
(2008) (Breyer, J., for the majority); id. at 760-61 (Ginsburg, J.,
dissenting); Bowles v. Russell, 127 S. Ct. 2360, 2365-66 (2007).
3
Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C.
Cir. 2007) (citing Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584
(1999); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94-95
(1998)).