United States District Court, D. Colorado
SLATER PARK LAND AND LIVESTOCK, LLC, a Colorado Limited Liability Company, Plaintiff,
U.S. ARMY CORPS OF ENGINEERS, SUSAN BACHINI NALL, in her official capacity as the Chief of the Colorado West Section Regulatory Division of the Sacramento District of the United States Army Corps of Engineers, Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants U.S. Army Corps of
Engineers and Susan Bachini Nall's Motion to Dismiss.
(Doc. # 14.) Based on the following reasons, the Court grants
2012, Plaintiff reconstructed an 1800's era earthen dam
across Slater Creek- a small stream that runs throughout
Plaintiff's property in Routt County, Colorado. (Doc. #
14 at 5; Doc. # 17 at 3.) The original dam was built to
create a pond to facilitate irrigation and stock watering,
but it was washed out by a severe weather event in the
1930's. (Doc. # 1 at 10, ¶ 45.) In 2017, Defendants
received a report of Plaintiff's dam construction on
Slater Creek and opened an investigation. (Doc. # 14 at 5.)
investigation concluded that Plaintiff discharged fill
material into Slater Creek and the surrounding protected
wetlands during the construction of the on-channel pond.
(Doc. # 17 at 6.) On August 17, 2018, Defendants issued a
letter notifying Plaintiff that the dam was constructed in
violation of § 404 of the Clean Water Act
(“CWA”). (Doc. # 14 at 6; Doc. # 1-2 at 1.)
Plaintiff challenges Defendants' notice of violation
(“NOV”) in the instant suit.
indicating that Plaintiff's dam was unauthorized, the NOV
set forth several options which Plaintiff could implement to
remedy the situation without incurring disciplinary action.
(Doc. # 17 at 6.) These options included: “restoring
the impacted waters to pre-disturbance conditions, partially
restoring impacted waters, and/or obtaining an after-the-fact
permit for all or a portion of the work.” (Doc. # 1-2
at 1.) Then, the NOV requested that Plaintiff choose one of
the options and notify Defendants of its “remedy
proposal” by August 31, 2018. (Id. at 1-2.)
The letter further stated that failure to respond to the
request for a remedy proposal “may result in elevated
enforcement actions” such as “possible referral
to the EPA, fines, and/or penalties.” (Id. at
contends that the construction of the dam is exempt from the
CWA pursuant to the CWA's agricultural exemption. (Doc. #
17 at 3.) Thus, Plaintiff did not submit a remedy proposal to
Defendants. (Doc. # 14 at 7.) Instead, on March 7, 2019,
Plaintiff filed this action seeking judicial review of the
NOV. (Doc. # 1.) Plaintiff alleges that the NOV interferes
with its use and enjoyment of its land. (Id. at 3,
¶ 6.) Plaintiff seeks two forms of relief. First,
Plaintiff seeks injunctive relief against the enforcement of
the NOV. (Id. at 4, ¶ 9.) Second, Plaintiff
seeks a declaration that: (1) the reconstruction of the dam
is exempt from the CWA; and (2) Plaintiff's due process
rights were violated by Defendants' issuance of the NOV.
(Doc. # 17 at 4.)
filed the instant Motion to Dismiss on May 31, 2019. (Doc. #
14.) Defendants assert that the Court lacks jurisdiction
because the NOV is not a final agency action. (Id.
at 1-2.) Plaintiff filed a Response on June 21, 2019 (Doc. #
17), and Defendants filed a Reply on July 5, 2019 (Doc. #
§ 704 OF THE APA AND THE REQUIREMENT OF FINAL AGENCY
authorizes judicial review of “[a]gency action made
reviewable by statute and final agency action for which there
is no other adequate remedy in a court.” Kansas, ex
rel. Schmidt v. Zinke, 861 F.3d 1024, 1028 (10th Cir.
2017); 5 U.S.C. § 704. There is no statute authorizing
judicial review in this case; therefore, this Court may only
review Defendants' action if it constitutes “final
agency action.” Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 882 (1990).
to the Supreme Court's ruling in Bennett v.
Spear, “two conditions must be satisfied for
agency action to be ‘final.'” 520 U.S. 154,
177 (1997). First, the action must “mark the
consummation of the decisionmaking process.”
Id. at 177-78. Second, the action must be one by
which “rights or obligations have been determined,
” or from which “legal consequences will
flow.” Id. at 178.
DISMISSAL UNDER RULE 12(b)
filed this Motion to Dismiss under Rule 12(b)(1) for lack of
subject-matter jurisdiction. (Doc. # 14.) However, the
presence of final agency action is not a jurisdictional
issue.Sierra Club v. Jackson, 648 F.3d
848, 854 (D.C. Cir. 2011) (citing Trudeau v. FTC,
384 F.Supp.2d 281, 294 n.13 (D.D.C. 2005),
aff'd, 456 F.3d 178 (D.C. Cir. 2006)). This
Court has federal question jurisdiction pursuant to 28 U.S.C.
§ 1331, whereas the APA's requirements are a part of
Plaintiff's cause of action. Oryszak v.
Sullivan, 576 F.3d 522, ...