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Golden Gate Audubon Soc'y, Inc. v. Corps of Eng'rs

ELR Citation: 18 ELR 21401
Nos. No. C 87-6063 TEH, 717 F. Supp. 1417/28 ERC 1005, 1007/(N.D. Cal., 06/20/1988) Amended

The court holds that §505(a)(1) of the Federal Water Pollution Control Act (FWPCA) and the federal question statute grant federal subject matter jurisdiction over a challenge to a Corps of Engineers wetlands determination, and rules that lands filled and converted to dry land after 1975 may still be wetlands subject to the Corps' jurisdiction. In 1986, the Corps determined that a piece of land that had been undergoing filling activities since 1965 is now dry land, and no longer constitutes a wetland subject to the requirements of the dredge and fill program. The Environmental Protection Agency (EPA) subsequently issued a contrary finding that the property did constitute a wetland, and issued a compliance order against the owner. EPA later withdrew its finding and order.

The court first holds that federal subject matter jurisdiction over the issue of the Corps' jurisdictional determination arises from plaintiffs' §505(a)(1) action against the site owner for allegedly filling the wetland without a permit, since the owner will raise the Corps' decision as a defense. Cases establishing that an anticipated federal defense to a state law claim fails to confer federal subject matter jurisdiction are inapplicable here because plaintiffs' claim itself arises under federal law. The court holds that it also has jurisdiction under 28 U.S.C. §1331, the general federal question jurisdiction statute. The Administrative Procedure Act (APA) authorizes suits against federal agencies by persons aggrieved by agency action, and §1331 provides the district court with jurisdiction to hear challenges under the APA.

The court next holds that lands converted and filled to dry land after 1975, the date that the Corps acquired jurisdiction over adjacent wetlands, may still be wetlands "under normal circumstances" subject to the Corps' jurisdiction. The court rules that permitless discharges of fill material made in violation of the FWPCA may not be used to establish the normal circumstances of a site, and holds that the Corps' determination that permitless filling can establish a site's normal circumstances was arbitrary and capricious. To preclude regulatory jurisdiction over all converted wetlands, regardless of when they were converted, would violate congressional intent by allowing developers to engage in illegal filling activities and then to rely on that illegality to evade further compliance with the permit program. The court holds that the jurisdictional issue should be remanded to the Corps rather than EPA. EPA rescinded its earlier jurisdictional finding, and the Corps' determination remains in effect. Moreover, under the interagency MOU, the Corps is responsible for making the jurisdictional decision concerning this site because it has not been designated as a special case to be decided by EPA. The court declines to dismiss plaintiffs' causes of action against the site owner and against EPA for failure to enforce the owner's compliance with the permit program. The court dismisses as moot plaintiffs' claim against EPA and the Corps for failure to make a wetlands determination.

[This opinion replaces the court's earlier opinion published at 18 ELR 20992.]

Counsel for Plaintiffs
Allen Waltner
Gorman & Waltner
1419 Broadway Ave., Suite 419, Oakland CA 94612
(415) 465-4494

Zach Cowan
66 Mint St., San Francisco CA 94103
(415) 543-2627

Counsel for Defendant
Gale Cooper
U.S. Environmental Protection Agency
Office of General Counsel
401 M St. SW, Washington DC 20460
(202) 475-8040

Karen Egbert
Environmental Defense Section, Department of Justice
P.O. Box 23968
Washington DC 20026
(202) 786-4786