Fairbanks North Star v. U.S. Army ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAIRBANKS NORTH STAR BOROUGH, 
Plaintiff-Appellant, No. 07-35545
v. D.C. No.
U.S. ARMY CORPS OF ENGINEERS;  CV-06-00026-F-
JOHN W. PEABODY; KEVIN J. RRB
WILSON, OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
August 4, 2008—Anchorage, Alaska
Filed September 12, 2008
Before: Dorothy W. Nelson, A. Wallace Tashima and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
12737
FAIRBANKS NORTH STAR v. USACE 12739
COUNSEL
Joseph W. Miller, Fairbanks North Star Borough, Fairbanks,
Alaska; James S. Burling and Damien M. Schiff (argued),
Pacific Legal Foundation, Sacramento, California, for the
plaintiff-appellant.
Ronald J. Tenpas, Acting Assistant Attorney General, Steven
E. Rusak, Ellen J. Durkee, Aaron P. Avila and Robert H. Oak-
ley (argued), Attorneys, United States Department of Justice,
12740 FAIRBANKS NORTH STAR v. USACE
Environmental and Natural Resources Division, Washington,
DC; Toni B. London, United States Army Corps of Engineers,
Office of Counsel, for the defendants-appellees.
OPINION
FISHER, Circuit Judge:
The Clean Water Act (“CWA”) makes it unlawful to dis-
charge 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 Environmental Protection Agency (“EPA”). See United
States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 123
(1985). Fairbanks North Star Borough (“Fairbanks”) seeks
judicial review of a Corps’ “approved jurisdictional determi-
nation,” 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. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm the
district court’s dismissal on the pleadings for lack of jurisdic-
tion. The Corps’ approved jurisdictional determination is not
final agency action within the meaning of the Administrative
Procedure Act (“APA”), 5 U.S.C. § 704.
BACKGROUND1
“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). Under the CWA,
“any discharge of dredged or fill materials into . . . ‘waters of
1
On review of a judgment on the pleadings, we “accept all material alle-
gations in the complaint as true and construe them in the light most favor-
able to [the non-moving party].” Turner v. Cook, 362 F.3d 1219, 1225 (9th
Cir. 2004) (internal quotation marks omitted and alterations in original).
FAIRBANKS NORTH STAR v. USACE 12741
the United States’[ ] is forbidden unless authorized by a per-
mit issued by the Corps of Engineers pursuant to” Section 404
of the CWA, which is codified at 33 U.S.C. § 1344. Leslie
Salt Co. v. United States, 55 F.3d 1388, 1391 (9th Cir. 1995);
see also Riverside Bayview, 474 U.S. at 123; Se. Alaska Con-
servation Council v. U.S. Army Corps of Eng’rs, 486 F.3d
638, 646 (9th Cir. 2007). “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, 531
U.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).
Fairbanks wishes to develop a 2.1 acre tract of property for
its residents’ recreational use. It intends to build “play-
grounds, athletic fields, concession stands, restrooms, storage
buildings, road[s], and parking lots,” the construction of
which will “include the placement of fill material.” In October
2005, Fairbanks wrote to the Corps to “ask[ ] for [its] review
and determination” that it could place fill material on its prop-
erty without further ado. It asked the Corps to “provide a
detailed, scaled drawing showing the . . . wetlands in relation
to the lot boundaries.” The Corps thereafter issued a “prelimi-
nary” jurisdictional determination finding that Fairbanks’
entire parcel contained wetlands. Fairbanks then requested
that the Corps provide an “approved” jurisdictional determi-
nation. In December 2005, the Corps obliged Fairbanks and
replied:
Based on our review of the information you fur-
nished and available to our office, we have deter-
mined that the entire parcel described above contains
waters of the United States . . . under our regulatory
jurisdiction . . . . This approved jurisdictional deter-
mination is valid for a period of five (5) years . . .
unless new information supporting a revision is pro-
vided to this office . . . .
12742 FAIRBANKS NORTH STAR v. USACE
The Corps’ letter went on to remind Fairbanks that “Section
404 of the Clean Water Act requires that a [ ] permit be
obtained for the placement or discharge of dredged and/or fill
material into waters of the U.S., including wetlands, prior to
conducting the work.” Fairbanks took a timely administrative
appeal of the approved jurisdictional determination, which the
Corps found to be without merit in May 2006. Fairbanks has
not since applied for a Section 404 permit. Nor has the Corps
initiated any pre-enforcement or enforcement action.
In August 2006, Fairbanks brought this suit to set aside the
Corps’ approved jurisdictional determination. According to
Fairbanks, the Corps acted unlawfully in asserting that its
property was subject to CWA regulatory jurisdiction. Fair-
banks contended that its property could not possibly be a wet-
land 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.” A Corps regulation,
which is not challenged here, provides that:
The term wetlands means those areas that are inun-
dated or saturated by surface or ground water at a
frequency and duration sufficient to support, and that
under normal circumstances do support, a prevalence
of vegetation typically adapted for life in saturated
soil conditions.
33 C.F.R. § 328.3(b). To identify wetlands under this regula-
tion, the Corps uses its 1987 Wetlands Delineation Manual
(“Manual”). See Energy and Water Development Appropria-
tions Act, Pub. L. No. 102-377, 106 Stat. 1315, 1324 (1992);
United States v. Deaton, 332 F.3d 698, 712 (4th Cir. 2003).
The Manual explains that wetlands have the three “general
diagnostic environmental characteristics” of vegetation, soil
and hydrology. Manual ¶ 26(b). Generally, “evidence of a
minimum of one positive wetland indicator from each param-
eter (hydrology, soil, and vegetation) must be found in order
FAIRBANKS NORTH STAR v. USACE 12743
to make a positive wetland determination.” Id. ¶ 26(c). Fair-
banks alleged that its property lacks wetlands hydrology,
because it is not “periodically inundated” and does not have
“saturated soils during the growing season.” Id. ¶ 46. The
Manual defines “growing season” as “[t]he portion of the year
when soil temperatures at 19.7 in. below the soil surface are
higher than biologic zero (5° C)” and notes that “[f]or ease of
determination this period can be approximated by the number
of frost-free days.” Id. at App. A. Fairbanks asserted that the
Corps’ jurisdictional determination improperly relied on a
special definition of “growing season,” which Fairbanks calls
the “Alaska Rule,” inconsistent with the Manual’s definition.
The Alaska Rule states that the frost-free period based on a
“28 degree air temperature” best fits the “observed growing
season in most parts of [Alaska].” See Army Corps of Engi-
neers, Alaska District, Special Public Notice 03-05 (July 25,
2003). By using the Alaska Rule, Fairbanks claimed, the
Corps could establish a growing season even when a property
is underlain by shallow permafrost, and never has a subsur-
face soil temperature higher than biologic zero.2 Conse-
quently, the Corps’ finding that Fairbanks’ property was a
wetland subject to CWA regulatory jurisdiction was errone-
ous.
The district court granted the Corps’ motion for judgment
on the pleadings, concluding that the approved jurisdictional
determination did not constitute final agency action under the
APA, that Fairbanks’ challenge was unripe and that the CWA
statutorily precluded judicial review. Fairbanks timely
appealed.
2
Fairbanks concedes that the Corps’ rescission of the Alaska Rule in
March 2006 moots its claim that the Alaska Rule was promulgated with-
out compliance with the APA’s notice-and-comment procedures and does
not challenge the district court’s entry of judgment as to that claim.
12744 FAIRBANKS NORTH STAR v. USACE
STANDARD OF REVIEW
“We review a judgment dismissing a case on the pleadings
de novo.” Dunlap v. Credit Prot. Ass’n., L.P., 419 F.3d 1011,
1012 n.1 (9th Cir. 2005) (per curiam). “A judgment on the
pleadings is properly granted when, taking all the allegations
in the pleadings as true, the moving party is entitled to judg-
ment as a matter of law.” Id. (internal quotation marks omit-
ted). “We review de novo the district court’s determination
that it lacked subject matter jurisdiction. We therefore do not
defer to the agency’s position on whether agency action is
final.” Or. Natural Desert Ass’n v. U.S. Forest Serv., 465 F.3d
977, 979 n.1 (9th Cir. 2006) (internal citations omitted).
DISCUSSION
[1] 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 pur-
poses of judicial review.3 “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 con-
sequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78
(1997) (internal citations and quotation marks omitted). The
approved jurisdictional determination represented the Corps’
definitive administrative position that Fairbanks’ property
contained wetlands. But, as we shall explain, it did not “ ‘im-
3
This question has not been addressed by any published decision of the
courts of appeals. See Greater Gulfport Prop., LLC v. U.S. Army Corps
of Eng’rs, 194 F. App’x 250 (5th Cir. 2006) (unpublished) (holding that
district court lacked jurisdiction to review Corps’ approved jurisdictional
determination); Comm’rs of Pub. Works v. United States, 30 F.3d 129 (4th
Cir. 1994) (unpublished) (same).
FAIRBANKS NORTH STAR v. USACE 12745
pose an obligation, deny a right, or fix some legal relation-
ship.’ ” Ukiah Valley Med. Ctr. v. FTC, 911 F.2d 261, 264
(9th Cir. 1990) (quoting Chicago & S. Air Lines, Inc. v.
Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). Because
finality is a jurisdictional requirement to obtaining judicial
review under the APA, the district court correctly dismissed
Fairbanks’ action. See Or. Natural Desert Ass’n, 465 F.3d at
982. We do not reach the issues of ripeness and statutory pre-
clusion of judicial review.
I.
We agree with Fairbanks that an approved jurisdictional
determination upheld in the Corps’ administrative appeal pro-
cess “mark[s] the consummation of the agency’s decision-
making process” for determining whether the Corps conceives
a property as subject to CWA regulatory jurisdiction. There
is no question that the Corps has asserted its ultimate adminis-
trative position regarding the presence of wetlands on Fair-
banks’ property “on the factual circumstances upon which the
[determination is] predicated[.]” See Alaska Dep’t of Envtl.
Conservation v. EPA, 244 F.3d 748, 750 (9th Cir. 2001)
(“Alaska I”); see also Alaska Dep’t of Envtl. Conservation v.
EPA, 298 F.3d 814, 818 (9th Cir. 2002), aff’d 540 U.S. 461,
483 (2004) (“Alaska II”). The approved jurisdictional deter-
mination states on its face that it “is valid for a period of five
(5) years” and that the Corps’ position would change only if
“new information supporting a revision is provided.”4 It is
4
Alaska I forecloses the Corps’ contention that an approved jurisdic-
tional determination cannot satisfy Bennett’s first prong because the Corps
might alter its position if the physical condition of Fairbanks’ property
changed. We had no difficulty there regarding the EPA’s findings as its
“last word” about the contested issue because the agency’s position was
“unalterable”: it “would change only if the circumstances surrounding the
[generator’s construction] changed.” Alaska I, 244 F.3d at 750; see also
Gen. Elec. Co. v. EPA, 290 F.3d 377, 380 (D.C. Cir. 2002) (“If the possi-
bility . . . of future revision in fact could make agency action non-final as
a matter of law, then it would be hard to imagine when any agency rule
. . . would ever be final . . . .”).
12746 FAIRBANKS NORTH STAR v. USACE
“devoid of any suggestion that it might be subject to subse-
quent revision” or “further agency consideration or possible
modification.” See City of San Diego v. Whitman, 242 F.3d
1097, 1102 (9th Cir. 2001) (quoting Ontario v. EPA, 912 F.2d
1525, 1532 (D.C. Cir.1990), and Ciba-Geigy Corp. v. EPA,
801 F.2d 430, 436-37 (D.C. Cir. 1986)).
[2] By regulation, the Corps has established a formal proce-
dure for “[a]ffected part[ies]” to solicit its official position
about the scope of CWA regulatory jurisdiction. See 33
C.F.R. § 331.2. A jurisdictional determination is a “written
Corps determination that a wetland . . . is subject to regulatory
jurisdiction under [the CWA].” Id.; see also Jurisdictional
Determinations, Corps Regulatory Guidance Letter 08-02, at
1 (June 26, 2008) (“An approved [jurisdictional determina-
tion] is an official Corps determination that jurisdictional
[waters under the CWA] are either present or absent on a par-
ticular site.”). After the district engineer’s approved jurisdic-
tional determination has been upheld by the division engineer,
no further administrative appeal is possible. See 33 C.F.R.
§ 331.9.5 At that point, the approved jurisdictional determina-
tion is deemed to be “final Corps agency action” and a “final
Corps decision” for administrative purposes. Id.§ 320.1(a)(2), (a)(6) (emphasis added).6 The regulations thus
5
With limited exceptions, the Corps’ district engineers are authorized to
“issue formal determinations concerning the applicability of the Clean
Water Act . . . to . . . tracts of land . . . .” 33 C.F.R. § 320.1(a)(6); but cf.
id. § 325.9. The district engineer’s jurisdictional determination is subject
to administrative appeal. Id. § 320.1(a)(2). In determining the appeal, the
reviewing officer is to “conduct an independent review of the administra-
tive record to address the reasons for the appeal cited by” the appellant.
Id. § 331.3(b)(2). The reviewing officer must render a decision within 12
months of the filing of a request for appeal, id. § 331.8, “document his
decision on the merits of the appeal in writing,” id. § 331.9(b), and file it
“in the administrative record for the project,” thereby concluding the
administrative appeal process, id. § 331.9(c).
6
An agency’s characterization of its own action as final is not “determi-
native” of our own finality analysis under the APA, Blincoe v. FAA, 37
FAIRBANKS NORTH STAR v. USACE 12747
delimit the stopping point of the Corps’ decisionmaking pro-
cess for the issuance and review of jurisdictional determina-
tions. An approved jurisdictional determination upheld on
administrative appeal is the agency’s “last word” on whether
it views the property as a wetland subject to regulation under
the CWA. See Sierra Club v. U.S. NRC, 825 F.2d 1356, 1362
(9th Cir. 1987). No further agency decisionmaking on that
issue can be expected, a clear indication that the first prong
of the Bennett finality test is satisfied. See id.The Corps argues that an approved jurisdictional determi-
nation merely helps parties “determine where they stand on
potential permitting issues” and “necessarily entails the possi-
bility of further administrative proceedings,” like permit
applications. As such, the determination is “only [a] step[ ]
leading to an agency decision, rather than the final action
itself.” See Ecology Ctr., Inc. v. U.S. Forest Serv., 192 F.3d
922, 925 (9th Cir. 1999). Fairbanks correctly responds that
this argument “conflate[s] one . . . decision with a future yet
distinct administrative process.” The Corps’ regulations
throughout treat jurisdictional determinations and permitting
decisions as discrete agency actions.7 Notably, jurisdictional
determinations “do not include determinations that a particu-
lar activity requires a . . . permit.” 33 C.F.R. § 331.2. The
F.3d 462, 464 (9th Cir. 1994) (per curiam), though it does “provide[ ] an
indication of the nature of the [agency’s] action,” City of San Diego, 242
F.3d at 1101 n.6. The Corps has expressly declined to address “in . . . rule-
making when a [jurisdictional determination] should be considered a final
agency action” for purposes of judicial review. See Final Rule Establish-
ing an Administrative Appeal Process for the Regulatory Program of the
Corps of Engineers, 65 Fed. Reg. 16,486, 16,488 (Mar. 28, 2000).
7
See, e.g., 33 C.F.R. § 331.2 (identifying approved jurisdictional deter-
minations, permit denials and declined permits as categories of “appeal-
able action[s]”); id. § 331.3(a)(1) (allowing division engineer to delegate
authority when reviewing jurisdictional determinations, but not permit
decisions); see also Corps Regulatory Guidance Letter 08-02, at 2-3
(explaining that approved jurisdictional determination need not be secured
before initiating permitting process).
12748 FAIRBANKS NORTH STAR v. USACE
Corps’ reliance on City of San Diego is misplaced in view of
the agency’s provision of a formal procedure for acquiring its
settled views about the scope of CWA jurisdiction outside of
and apart from the permitting process. Cf. City of San Diego,
242 F.3d at 1101 (reasoning that letter did not mark consum-
mation of decisionmaking process because it was only “upon
completion of the permit appeal process” that agency would
decide applicability of statute). That Fairbanks might later
decide to initiate some other Corps process after obtaining the
approved jurisdictional determination does not detract from
the definiteness of the determination itself.
[3] An approved jurisdictional determination announces the
Corps’ considered, definite and firm position about the pres-
ence of jurisdictional wetlands on Fairbanks’ property at the
time it is rendered. Accordingly, we conclude that it marks the
consummation of the agency’s decisionmaking process as to
that issue.
II.
[4] Although Fairbanks is correct that the first Bennett
requirement is satisfied, the second is not. We hold that the
Corps’ approved jurisdictional determination finding that
Fairbanks’ property contained wetlands subject to CWA regu-
latory jurisdiction is not an “action . . . by which ‘rights or
obligations have been determined,’ or from which ‘legal con-
sequences will flow.’ ” Bennett, 520 U.S. at 178; see also Or.
Natural Desert Ass’n, 465 F.3d at 987 (examining “whether
[challenged action] has any legal effect that would qualify it
as a final agency action under Bennett’s second finality
requirement”). From this it follows that judicial review under
the APA is unavailable.
[5] Fairbanks’ rights and obligations remain unchanged by
the approved jurisdictional determination. It does not itself
command Fairbanks to do or forbear from anything; as a bare
statement of the agency’s opinion, it can be neither the subject
FAIRBANKS NORTH STAR v. USACE 12749
of “immediate compliance” nor of defiance. See FTC v. Stan-
dard Oil Co., 449 U.S. 232, 239-40 (1980). Up to the present,
the Corps has “expresse[d] its view of what the law requires”
of Fairbanks without altering or otherwise fixing its legal rela-
tionship. See AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir.
2001). This expression of views lacks the “status of law or
comparable legal force.” See Ukiah Valley Med. Ctr., 911
F.2d at 264.8 In any later enforcement action, Fairbanks would
face liability only for noncompliance with the CWA’s under-
lying statutory commands, not for disagreement with the
Corps’ jurisdictional determination. See 33 U.S.C. § 1319(b)-
(c), (g) (providing criminal, civil and administrative penalties
for violation of the CWA, but not referring to approved juris-
dictional determinations); cf. Tenn. Valley Auth. v. Whitman,
336 F.3d 1236, 1255-57 (11th Cir. 2003) (reasoning that
Clean Air Act compliance orders have status of law because
statute “undeniably authorizes[s] . . . penalties based solely
upon noncompliance” with them).
[6] At bottom, Fairbanks has an obligation to comply with
the CWA. If its property contains waters of the United States,
then the CWA requires Fairbanks to obtain a Section 404 dis-
charge permit; if its property does not contain those waters,
then the CWA does not require Fairbanks to acquire that per-
mit. In either case, Fairbanks’ legal obligations arise directly
and solely from the CWA, and not from the Corps’ issuance
of an approved jurisdictional determination. See Gallo Cattle
Co. v. USDA, 159 F.3d 1194, 1199 (9th Cir. 1998) (agency
8
Cf., e.g., Alaska II, 540 U.S. at 481 n.10 (“[T]he stop-construction
order imposed ‘new legal obligations’ . . . .”) (emphasis added); Pub. Util.
Dist. No. 1 of Snohomish County v. Bonneville Power Admin., 506 F.3d
1145, 1152 (9th Cir. 2007) (“[T]hey created new benefits and obligations
. . . .”) (emphasis added); Or. Natural Desert Ass’n, 465 F.3d at 985 n.10
(recognizing “substantive legal constraints imposed” by the challenged
agency action); Alaska I, 244 F.3d at 750 (explaining that the parties
bringing suit “would be subject to criminal and civil penalties for the vio-
lation of [the agency’s orders], as well as for the violation of the” Clean
Air Act itself) (emphasis added).
12750 FAIRBANKS NORTH STAR v. USACE
decision not final agency action because potential legal conse-
quences flowed only from the plaintiff’s “disregard of its stat-
utory obligation”). Whether Fairbanks’ property is a
jurisdictional wetland (i.e., contains waters of the United
States) depends on its “vegetation, soil and hydrology” — the
land is what and where it is. The Corps does not alter that
physical reality or the legal standards used to assess that real-
ity simply by opining that a particular site contains waters of
the United States. See Nat’l Ass’n of Home Builders v. Nor-
ton, 415 F.3d 8, 16 (D.C. Cir. 2005) (agency action that “left
the world just as it found it . . . cannot be fairly described as
implementing, interpreting, or prescribing law or policy”)
(internal quotation marks omitted).
In withholding judicial review of the Corps’ approved juris-
dictional determination, we do not impair Fairbanks’ ability to
contest the existence of CWA regulatory jurisdiction. See
Indus. Customers of Nw. Utils. v. Bonneville Power Admin.,
408 F.3d 638, 647 (9th Cir. 2005); see also Nat’l Ass’n of
Home Builders, 415 F.3d at 15. It is settled law that the fed-
eral courts have the final say on the scope of the CWA.9 In
exercising that authority, we would not give the government’s
position that CWA regulatory jurisdiction exists any particu-
lar deference simply because the Corps’ views on the matter
were formulated in the context of an approved jurisdictional
determination rather than, for example, a permit application or
enforcement proceeding.
Despite all this, Fairbanks urges that the Corps’ approved
jurisdictional determination has three legal consequences: it
9
See, e.g., Baccarat Fremont Developers, LLC v. U.S. Army Corps of
Eng’rs, 425 F.3d 1150, 1153 (9th Cir. 2005) (reviewing CWA regulatory
jurisdiction in context of challenge to discharge permit’s mitigation
requirements); United States v. Phillips, 367 F.3d 846, 854-55 (9th Cir.
2004) (reviewing CWA regulatory jurisdiction in context of motion to dis-
miss indictment); Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d
526, 533 (9th Cir. 2001) (reviewing CWA regulatory jurisdiction in con-
text of citizen suit).
FAIRBANKS NORTH STAR v. USACE 12751
prevents Fairbanks from claiming in mitigation that it had
acted with good faith; it effectively requires Fairbanks to sub-
mit to the CWA’s permitting regime before proceeding with
construction; and it deprives Fairbanks of a “negative” juris-
dictional determination, which might have been relied upon as
a defense to enforcement action.10 We do not consider these
arguments persuasive and shall address each in turn.
[7] “In determining the amount of a civil penalty the court
shall consider . . . any good-faith efforts to comply with the
applicable requirements [of the CWA] . . . .” 33 U.S.C.
§ 1319(d) (emphasis added). As even the Corps recognizes,
an approved jurisdictional determination could “eventually be
evidence on the issue of whether a particular course of con-
duct was undertaken in good or bad faith.” But the possibility
that Fairbanks might someday face a greater risk of increased
fines should it proceed without regard to the Corps’ assertion
of jurisdiction does not constitute a legal consequence of the
approved jurisdictional determination. Cf. City of Fremont v.
FERC, 336 F.3d 910, 914 (9th Cir. 2003) (“Because the
FERC orders attach legal consequences to the future . . . pro-
10
Fairbanks also contends that an approved jurisdictional determination
is judicially reviewable like an interpretive rule that has a “substantial
impact on the rights of individuals,” Am. Postal Workers Union v. U.S.
Postal Serv., 707 F.2d 548, 560 (D.C. Cir. 1983), or the denial of a permit
authorizing an otherwise proscribed activity, John Doe, Inc. v. DEA, 484
F.3d 561, 566-67 (D.C. Cir. 2007). These arguments assume the desired
conclusion: such agency actions are judicially reviewable only insofar as
they have tangible legal consequences or otherwise alter the legal relation-
ship between the parties. See Oregon v. Ashcroft, 368 F.3d 1118, 1120
(9th Cir. 2004) (holding that interpretive rule “is a final determination for
jurisdictional purposes because the rule impos[es] obligations and sanc-
tions in the event of violation [of its provisions]”) (internal quotation
marks omitted and alteration in original). By contrast, the Corps’ approved
jurisdictional determination imposes no new or additional legal obligations
on Fairbanks. It at most “simply ‘reminds’ affected parties of existing
duties” imposed by the CWA itself and commands nothing of its own
accord. See Citizens to Save Spencer County v. EPA, 600 F.2d 844, 876
n.153 (D.C. Cir. 1979).
12752 FAIRBANKS NORTH STAR v. USACE
ceedings, they satisfy the finality prong of our analysis.”)
(emphasis added). Section 1319(d) does not mention jurisdic-
tional determinations, much less assign them any particular
evidentiary weight; thus, any difficulty Fairbanks might face
in establishing good faith flows not from the legal status of
the Corps’ determination as agency action, but instead from
the practical effect of Fairbanks having been placed on notice
that construction might require a Section 404 permit. See Ctr.
for Auto Safety v. NHTSA, 452 F.3d 798, 811 (D.C. Cir.
2006); Nat’l Ass’n of Home Builders, 415 F.3d at 15. The
Corps’ approved jurisdictional determination has no more
legal effect on Fairbanks’ ability eventually to assert a good
faith defense than would, for example, a report by a private
wetlands consultant informing Fairbanks that its property con-
tained wetlands.
[8] Fairbanks’ second argument, that the Corps’ approved
jurisdictional determination “as much as requires” and
“makes [Fairbanks] subject to the CWA permitting regime, an
onerous administrative maze,” likewise erroneously conflates
a potential practical effect with a legal consequence.11 We do
11
We appreciate that navigating the CWA permitting process is no small
task. See Rapanos, 547 U.S. at 721 (plurality opinion) (“The average
applicant for an individual permit spends 788 days and $271,596 in com-
pleting the process, and the average applicant for a nationwide permit
spends 313 days and $28,915 . . . .”). Yet, we must keep in mind that these
are the costs of statutory compliance with the CWA. Whether or not it has
an approved jurisdictional determination in hand, the owner of land that
contains waters of the United States must bear those costs. Because any
legal obligation to undergo the CWA permitting process does not arise
from the Corps having expressed its view that Fairbanks’ property is a
wetland, we do not reach the Corps’ argument that agency action requiring
a party to participate in further agency proceedings is characteristically
non-final. Compare Hecla Mining Co. v. EPA, 12 F.3d 164 (9th Cir. 1993)
(EPA’s decision to list mine as “point source[ ] discharging toxic pollu-
tants that are responsible for impairing the achievement of water quality
standards” not final agency action because it “serve[d] only to initiate pro-
ceedings” and required no action on mine’s part until permitting process
complete), with Hawaiian Elec. Co. v. EPA, 723 F.2d 1440, 1442-43 (9th
Cir. 1984) (EPA’s determination that generator’s proposed fuel change
constituted a “major modification” was final agency action because it
required use of more rigorous “major modification” PSD permit review).
FAIRBANKS NORTH STAR v. USACE 12753
agree that now that Fairbanks is on the Corps’ radar screen,
it is at least plausible that the probability of enforcement
action if Fairbanks proceeds with construction without secur-
ing a Section 404 permit is greater than it was before it
requested an approved jurisdictional determination. Not every
agency “decision . . . [that] has immediate financial impact,”
or even “profound [economic] consequences” in the real
world, is final agency action, however. See Indus. Customers
of Ne. Util., 408 F.3d at 646-47. 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. The approved jurisdictional determination did
not augment the Corps’ legal authority to pursue enforcement
action. To the contrary, Fairbanks’ legal obligations —
including any obligation to pursue a Section 404 dredge and
fill material discharge permit — have always arisen solely on
account of the CWA. See Gallo Cattle, 159 F.3d at 1199.
[9] Fairbanks’ final point is a non sequitur. It contends that
because a Corps determination that a property does not con-
tain “waters of the United States” has legal consequences, a
Corps determination that a property does contain jurisdic-
tional waters likewise has legal consequences.12 Implicit in
Fairbanks’ argument is the dubious premise that if an agen-
cy’s decisionmaking process has multiple outcomes and any
of these outcomes is judicially reviewable, then all of them
12
Fairbanks may be correct that an official Corps statement that a prop-
erty is not a jurisdictional wetland subject to the CWA’s permitting
requirements could be the basis for an estoppel defense. When an autho-
rized government official tells the defendant that a course of action is legal
and the defendant reasonably relies to its detriment on that erroneous rep-
resentation, then fairness and due process may prohibit the state from pun-
ishing the defendant for that unlawful conduct. See United States v.
Brebner, 951 F.2d 1017, 1024-25 (9th Cir. 1991); United States v. Tall-
madge, 829 F.2d 767, 773 (9th Cir. 1987). Courts have recognized that
finality can result “if the language of the document is such that private
parties can rely on it as a . . . safe harbor by which to shape their actions.”
Gen. Elec. Co. v. EPA, 290 F.3d at 383 (internal quotation marks omitted).
12754 FAIRBANKS NORTH STAR v. USACE
must be judicially reviewable. We have not been directed to
any authority recognizing this as a principle of administrative
law. Unsurprisingly so: the law is replete with situations when
the availability of judicial review turns on the effect of the
agency’s particular decision. Agency action that does not
cause injury in fact is not judicially reviewable due to lack of
standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992). And agency action that does not “impose an obliga-
tion, deny a right, or fix some legal relationship” is not judi-
cially reviewable due to lack of finality. Ukiah Valley Med.
Ctr., 911 F.2d at 264. Whether a Corps finding that a property
is not subject to regulatory jurisdiction under the CWA would
constitute final agency action is beside the point here, where
Fairbanks seeks judicial review of a Corps’ finding that its
property is subject to CWA regulatory jurisdiction. A nega-
tive finding would effectively assure Fairbanks that the Corps
would not later be able to fault Fairbanks’ failure to seek a
permit. The affirmative finding simply puts Fairbanks on
notice that the Corps believes a permit is necessary if Fair-
banks decides to proceed with its project.
CONCLUSION
[10] We do not have jurisdiction to review the Corps’
approved jurisdictional determination finding that Fairbanks’
property contains wetland subject to CWA regulatory juris-
diction. Although the approved jurisdictional determination is
the Corps’ official, last word about its view of the status of
Fairbanks’ property, the Corps’ view does not impose an obli-
gation, deny a right or fix some legal relationship. Accord-
ingly, it is not final agency action under the APA.
AFFIRMED.