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Belle Co., L.L.C. v. United States Army Corps of Eng'rs

United States Court of Appeals, Fifth Circuit

July 30, 2014

BELLE COMPANY, L.L.C.; KENT RECYCLING SERVICES, L.L.C., Plaintiffs-Appellants
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellee

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[Copyrighted Material Omitted]

Page 385

Appeal from the United States District Court for the Middle District of Louisiana.

For Belle Company, L.L.C., Kent Recycling Services, L.L.C., Plaintiffs - Appellants: Murphy J. Foster III, Esq., John Baird King, Breazeale, Sachse & Wilson, L.L.P. Baton Rouge, LA; Jeremy S. LaCombe, Esq., LaCombe Law Firm, L.L.C., Baton Rouge, LA; John Dale Powers, Powers, Sellers, Mixon & Chapoton, L.L.P., Baton Rouge, LA.

For United States Army Corps of Engineers, Defendant - Appellee: Robert Joel Lundman, Aaron Peter Avila, Esq., U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC; John Joseph Gaupp, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Middle District of Louisiana, Baton Rouge, LA; Christina L. Richmond, U.S. Department of Justice, Environment & Natural Resources Division, Washington, DC.

For Pacific Legal Foundation, Amicus Curiae: Malcolm Reed Hopper, Esq., Pacific Legal Foundation, Sacramento, CA.

Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.

OPINION

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HIGGINSON, Circuit Judge

Plaintiff-Appellant Belle Company, L.L.C. owns property in the Parish of Assumption. Plaintiff-Appellant Kent Recycling, L.L.C. has an option to purchase the property in the event that it can be used as a solid-waste landfill. In February 2012, Defendant-Appellee United States Army Corps of Engineers (" Corps" ) issued a jurisdictional determination (" JD" ) stating that the property contains wetlands that are subject to regulation under the Clean Water Act. Belle and Kent (collectively, " Belle" ) sued, alleging that the JD is unlawful and should be set aside. The district court dismissed the suit for lack of subject-matter jurisdiction, concluding that the JD is not " final agency action" and therefore is not reviewable under the Administrative Procedure Act. For the reasons that follow, we AFFIRM.

I.

The Clean Water Act (" CWA" ) prohibits, among other things, the " discharge of any pollutant" into " navigable waters" unless authorized by a permit. 33 U.S.C. § § 1311(a), 1344. The CWA defines navigable waters as " the waters of the United States." 33 U.S.C. § 1362(7). Under Section 404 of the CWA, 33 U.S.C. § 1344, the Corps has authority to issue permits, termed 404 permits, for the discharge of dredged or fill materials into navigable waters. The regulations that govern the permitting process authorize the Corps to consult with potential permit applicants prior to receiving, processing, and issuing or denying individual permits. 33 C.F.R. § 325.1(b). The regulations also authorize the Corps " to issue formal determinations concerning the applicability of the Clean Water Act . . . to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities." 33 C.F.R. § § 320.1(a)(6); 325.9. The Corps has an administrative appeal process through which it reviews an initial JD. 33 C.F.R. § 331.

Belle's property has a long history. In 1991, the Corps informed Belle that the property correctly was designated as prior-converted cropland by the United States Department of Agriculture (" DOA" ) and thus did not constitute wetlands under the CWA. In 1993, the Corps and the United States Environmental Protection Agency (" EPA" ) promulgated a final rule that excluded property designated as prior-converted cropland from the definition of waters of the United States. 33 C.F.R. § 328.3(a)(8). In 1995, the DOA informed Belle that the property was prior-converted cropland and not a wetland under the 1990 Food and Security Act. In 2003, however, the Corps informed Belle that any prior correspondence as to the property's wetland status was not valid and that the property did constitute wetlands subject to Corps regulation. Subsequently, the Natural Resources Conservation Service 2 (" NRCS" ) issued a technical determination, based on earlier findings, that the property was commenced-conversion cropland.

In 2005, NRCS and the Corps jointly promulgated guidance, which stated that a previous designation as prior-converted cropland would be valid if a property was devoted to agricultural use but not if it had

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changed to a nonagricultural use (the " change-in-use policy" ). In 2009, the Corps released an Issue Paper and Memorandum (collectively, the " Stockton Rules" ) for JDs made in the Jacksonville District in Florida. These documents applied the 2005 Guidance to five properties in the Everglades and found that they were not prior-converted croplands because they had changed from an agricultural to a nonagricultural use.

In May 2009, Belle submitted to the Corps an application for a 404 permit to " conduct clearing and excavation activities to facilitate construction of a regional landfill" on the property. In June 2009, the Louisiana Department of Environmental Quality (" LDEQ" ) sent a letter to Belle, stating that the Corps had made a determination that a large portion of the proposed landfill site was considered wetlands. LDEQ further stated that Belle's Louisiana solid-waste permit would require a major modification that reflected the wetlands requirements in Louisiana regulations, LAC 33:VII.709(A)(7-8), and that Belle should submit its major-modification application no later than 120 days after it received a decision on its 404 permit application. Belle subsequently abandoned its 404 permit application.

Almost two years later, in January 2011, on Belle's request and after a field inspection by a district engineer, the Corps issued an initial JD, which stated that part of the property was wetlands and subject to the CWA such that, as Belle apparently previously had sought, a 404 permit would be required prior to filling the site. Belle appealed the decision through the Corps's administrative appeal process. After an appeal meeting, site visit, and 3 review, the division engineer found that portions of Belle's administrative appeal had merit. On remand, after additional investigation and review, the Corps upheld the determination that part of the property is wetlands.

Belle sued in district court for declaratory and injunctive relief to set aside the JD as unlawful. The district court granted the Corps's motion to dismiss on the ground that it lacked subject-matter jurisdiction over Belle's claims because the JD is not final agency action reviewable in court under the Administrative Procedure Act (" APA" ). Belle timely appealed. On appeal, Belle argues that the district court has subject-matter jurisdiction to review its three claims: (1) that the JD is arbitrary and capricious and should be invalidated; (2) that the administrative appeal process, as applied to Belle, unconstitutionally deprived Belle of liberty and property interests without due process of law; and (3) that ...


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