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P & V Enters. v. Corps of Eng'rs

ELR Citation: 38 ELR 20051
Nos. No. 07-5060, (D.C. Cir., 02/19/2008)

The D.C. Circuit dismissed developers' lawsuit challenging the U.S. Army Corps of Engineers' definition of "waters of the United States" in a 1986 rule as facially invalid under the Commerce Clause. The action is barred by the six-year statute-of-limitations period under 28 U.S.C. §2401(a). Because the Corps issued an advance notice of proposed rulemaking in 2003 following the U.S. Supreme Court's decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 31 ELR 20382 (2001) (SWANCC), the developers argued that the "reopening doctrine" applies, which allows an otherwise stale challenge to proceed. But the Corps’ statements in the 2003 notice do not demonstrate final agency action under the reopening doctrine. The 2003 notice did not allow for public comment on the Corps’ views in the 1986 rule, did not suggest that the Corps considered the substance of the 1986 rule to be in doubt in any precise manner, and did not offer a proposed rule. Nor was a press release on the SWANCC decision that the Corps issued in 2003 a consummation of the agency's decisionmaking process. The court, therefore, affirmed the dismissal of the developers' challenge for lack of subject matter jurisdiction.