Avella v. United States Army Corps of Engineers

No. 89-10064-CIV-King (S.D. Fla. January 22, 1990)

The court holds that the Army Corps of Engineers' negative response to a landowner's request for confirmation that the nationwide Federal Water Pollution Control Act dredge and fill permit applies to the landowner's property is not final agency action. Even if the Corps' response were considered agency action, the response is not reviewable because it is not "final" within the meaning of the Administrative Procedure Act. The Corps' response to a request for confirmation is merely advisory and has no binding legal effect on a potential permittee. Judicial review is available only if the Corps takes enforcement action or issues a decision on an individual permit application.

Counsel for Defendants
John M. Lipshultz
Land and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2338

Counsel for Plaintiff
Anthony J. O'Donnell
Akerman, Senterfitt & Eidson
One Brickell Sq., 24th Fl., 801 Brickell Ave., Miami FL 33131
(305) 374-5600

[20 ELR 20920]

King, J.:

Opinion

Before the court is the motion of defendants, United States Army Corps of Engineers ("Corps"), to dismiss the plaintiff's complaint and the plaintiff's opposition thereto. To the extent the complaint is understood to be seeking judicial review of the Corps' negative response to the plaintiff's request for confirmation of a nationwide permit, this court lacks jurisdiction to grant the requested relief because the response does not constitute "final agency action" as required by the Administrative Procedure Act ("APA"). See 5 U.S.C. § 704.

As a threshold matter, the Corps' negative response to the plaintiff's request must first be deemed "agency action" within the meaning of 5 U.S.C. § 551(13). For the purposes of this analysis, without directly deciding the issue, the Corps' response will be considered "agency action." However, even if it were agency action, the Corps' response is not reviewable because it is not "final" within the meaning of APA. See 5 U.S.C. § 704. Generally, "the relevant considerations in determining finality are whether the process of administrative decision making has reached a stage where judicial review will not disrupt the orderly process of adjudication and whether rights or obligations have been determined or legal consequences will flow fro the agency action." Marine Terminal Assn. v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970); see also ECEE, Inc. v. FPC, 526 F.2d 1270, 1273 (5th Cir. 1976) ("to be final an order must 'impose an obligation, deny a right or fix some legal relationship [20 ELR 20921] as a consummation of the administrative process'") (emphasis in original) (quoting Chicago & Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103, 113 (1948)), cert. denied, 429 U.S. 867 (1976).

The Corps' negative response to a request for confirmation itself has no binding legal effect on a potential permittee. Rather, it merely advises the requestor that the Corps does not believe that the proposed activity is authorized by the nationwide permit. After receiving the Corps' response, the potential permittee is no worse off legally than before; he may still proceed with the proposed activity if he is certain of his position or, as is favored by the Corps' regulations, he may initiate an individual permit application. See 33 C.F.R. § 330.11. If he chooses the former course, judicial review of the nationwide permit issue will be available if and when the United States takes enforcement action. If he chooses the latter course, such review will be available if and when a challenge is brought to the Corps' decision on the individual permit application. See 5 U.S.C. § 704. Under no circumstances, however, is judicial review available until the defendant has rendered a formal, legally binding decision (such as an individual permit decision), which presents the court with a fully-developed administrative record to review. Accordingly, after a careful review of the record and the court being otherwise fully advised, it is

ORDERED and ADJUDGED that the defendants' motion to dismiss the plaintiff's complaint for lack of subject matter jurisdiction be, and the same is hereby, GRANTED without prejudice to the plaintiff to refile once all administrative procedures have been exhausted.

DONE AND ORDERED in chambers at the United States Courthouse, Federal Courthouse Square, Miami, Florida, this 22nd day of January 1990.