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Slater Park Land and Livestock, LLC v. U.S. Army Corps of Engineers

United States District Court, D. Colorado

October 30, 2019

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.



         This 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 Defendants' Motion.

         I. BACKGROUND

         In 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.[1] (Doc. # 14 at 5.)

         Defendants' 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.

         After 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 2.)

         Plaintiff 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.)

         Defendants 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. # 18).



         The APA 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).

         Pursuant 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.

         B. DISMISSAL UNDER RULE 12(b)

         Defendants 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.[2]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, ...

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