Municipality of Anchorage v. United States

No. A89-503 (D. Alaska October 16, 1990)

The court holds that challenges to a Memorandum of Agreement (MOA) between the Environmental Protection Agency (EPA) and the Corps of Engineers on mitigation requirements under Federal Water Pollution Control Act § 404(b)(1) guidelines are not ripe for review. Plaintiffs allege that the MOA's requirement of compensatory mitigation, in the form of one-to-one replacement of wetlands, violates their procedural rights because the MOA was developed outside the notice and comment rulemaking procedures under the Administrative Procedure Act. The federal government claims that the MOA adds no new requirements for prospective permittees, and that the Corps retains authority to determine what mitigation is required in any given permit application. The court holds that the case is not ripe for review. The court notes that the issues presentedare purely legal and that the MOA represents final agency action. Nevertheless, the issues of whether the MOA requires new procedures or allows for agencies to rely on the guidelines and the MOA in making permit decisions are better addressed in a particular permit proceeding. Moreover, plaintiffs have shown no immediate impact on their day-to-day business resulting from the MOA, and plaintiffs are not now required to choose between compliance or penalty imposition.

Counsel for Plaintiffs
Richard Kibby
Office of Municipal Attorney
P.O. Box 196650, Anchorage AK 99519-6650
(907) 343-4545

Counsel for Defendants
Dean Dunsmore
U.S. Department of Justice
222 W. 7th Ave., No. 69, Anchorage AK 99513
(907) 271-5452

[21 ELR 20119]

Memorandum and Order

I. Introduction

THESE CAUSES come before the court on defendants motion to dismiss filed March 26, 1990 (Docket No. 11), on defendants' motion to dismiss in A90-097 prior to consolidation filed May 25, 1990 (Docket No. 13), on plaintiffs' joint cross- motion for summary judgment filed April 30, 1990 (Docket No. 19), on plaintiffs' motion for enlargement of time to file reply brief in excess of page limit filed June 12 19, 1990 (Docket No. 34), on defendants' motion for enlargement of time to file reply filed June 19, 1990 (Docket No. 37) and on plaintiff Arco's motion for a preliminary pre-trial conference filed January 10, 1990 (Docket No. 2) in case number F89-051.¹ The court heard oral argument on September 4, 1990. The facts are well-known to the parties and will not be recounted here.

II. Discussion

A. Motion to Dismiss

Defendants seek dismissal of plaintiff's complaints in the consolidated case claiming that plaintiffs' claims are not ripe for judicial review and that the court lacks subject matter jurisdiction or, in the alternative, that the Memorandum of Agreement (MOA) entered into by the Environmental Protection Agency (EPA) and the Army Corps of Engineers (Corps) is not subject to the Administrative Procedure Act's (APA) procedural rule making requirements, requiring dismissal of plaintiffs' complaints for failure to state a claim upon which relief can be granted. Defendants also seek dismissal of plaintiffs Doyon and State of Alaska's claims under the National Environmental Policy Act (NEPA) arguing that an environmental impact statement (EIS) is not required when an MOA is issued. Defendants also seek dismissal of plaintiffs' claims in A90-097 incorporating the same arguments as in the consolidated case. In addition, defendants seek dismissal of plaintiffs Sitka and Craig's claims that the EPA and the Corps failed to comply with Executive Orders 12,291 and 12,630 in that the Orders create no private rights of action redressable under the APA.

Plaintiffs' jointly cross-moved for summary judgment claiming that the MOA is a substantive or legislative rule and is not an interpretive rule or general statement of policy exempt from notice and comment requirements, that the MOA changes the basis meaning, intent and application of the 404(b)(1) Guidelines, that ripeness applies to plaintiffs' challenge to the alleged violation of procedural rights under the APA and that there exists no genuine issues of material fact. For the reasons discussed below, the court grants defendants' motions to dismiss and denies plaintiffs' motion for summary judgment.

B. Ripeness

Defendants argue that plaintiffs' claims in this case are not ripe for judicial review. Defendants assert that under the ripeness doctrine, Abbott Laboratories v. Gardner, 387 U.S. 136, 87 S. Ct. 1507 (1967), this court should defer review of the MOA until after the EPA and the Corps have had an opportunity to apply the MOA in a concrete, factual permit proceeding. American Civil Liberties Union v. FCC, 823 F.2d 1554, 1577 (D.C. Cir. 1987), cert. denied, 485 U.S. 959, 108 S. Ct. 1220 (1988). Plaintiffs argue that its procedural claims are fully matured and no further administrative action need to be taken to render them more concrete.

The Supreme Court in Abbott Laboratories articulated a two prong test for ripeness. The test requires a court to evaluate "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S. at 149, 87 S. Ct. at 1515. To determine whether an issue is fit for judicial decision, the court considers whether the issue is purely legal, whether final agency action has occurred and whether the court or the agency would benefit from postponement of review until agency action or policy has assumed a more concrete form. Air Transport Ass'n v. DOT, 900 F.2d 369 (App. D.C. 1990). The court need not reach the hardship prong of the test if it finds that the first prong is met.

Courts have determined that the first prong of the ripeness doctrine exists where the challenge is purely legal and that the agency action is final. Abbott Laboratories, 387 U.S. at 149, 87 S. Ct. at 1515-16; Toilet Goods Ass'n v. Gardner, 387 U.S. 158, 162-663, 87 S. Ct. 1520, 1523-24 (1967); Better Government Ass'n v. Department of State, 780 F.2d 86, 92 (D.C. Cir. 1986); Air Transport, 900 F.2d 369. The Supreme Court in Abbott Laboratories found the issues presented by petitioners' request for injunctive and declaratory relief to be fit for judicial resolution.² In that case, petitioners, drug companies, challenged a regulation promulgated by the Commissioner of Food and Drugs which required labels, advertisements, and other printed matter relating to prescription drugs to show the established name of the particular drug every time the trade name was used. The Court determined that the issues were purely legal and that final agency action had occurred. The Court further found that there existed a sufficiently direct and immediate impact on the petitioners' day-to-day business which made the issues appropriate for judicial review at that stage.

Decided the same day, the Court in Toilet Goods Ass'n determined that judicial review of a regulation promulgated by the Commissioner of Food and Drugs was not ripe. The petitioners in that case maintained that a regulation issued following due notice and publication was an impermissible exercise of authority of the Commissioner. The Court agreed with petitioners that the issues presented were purely legal and that the regulation was final agency action. The Court found, however, that other factors present in that case outweighed the appropriateness of judicial review at that time. The Court determined that "judicial appraisal . . . is likely to stand on a much surer footing in the context of a specific application of this regulation. . . ." 387 U.S. at 164, 87 S. Ct. at 1524. The Court, in finding that the issue was not ripe, also distinguished the fact that petitioners in that case would not be immediately impacted in their day-to-day affairs.

Ripeness was also not found to be present in American Civil Liberties Union. Petitioners in that case requested review of a rule promulgated by the F.C.C. The court found that purely legal issue was framed and that the requirement of final agency action was met. However, judicial resolution of the issue, the court found, would be better served in the context of a specific application of the rule.

Appellants' claims were found to be ripe in Better Government [21 ELR 20120] Ass'n. In that case, the appellants challenged the validity of a set of guidelines issued by the Department of Justice which determined whether an individual or organization requesting information under the Freedom of Information Act is entitled to waiver of search and copying fees. The court found that the issues presented by appellants were purely legal and needed no further factual development to facilitate understanding. Further, the aspect of final agency action was present in that the appellees would continue to utilize the standards set forth in the guidelines as they had in determining appellants' requests for fee waivers. Finally, the impact of the guidelines had a direct effect on the day-to-day business of the appellants.

The court, in Air Transport, upheld petitioner's contention that the Federal Aviation Administration's (FAA) promulgation of Penalty Rules invalid for failure to comply with the APA's notice and comment requirements. The FAA maintained that the "good cause" exception under 5 U.S.C. § 533(b)(3)(A)-(B) of the APA applied which justified dispensing with the notice and comment requirement. The court found that the challenge in question was purely legal and that nothing in that case favored deferring judicial review.

Defendants do not appear to argue that plaintiffs have not satisfied the elements of the challenge being "purely legal" or that MOA is "final agency action." Defendants, instead, focus on the element of the first prong of the ripeness doctrine which examines whether it is appropriate to defer judicial resolution until application of the MOA occurs in a specific permit proceeding.

Plaintiffs argue that the issue of whether the MOA is a substantive rule in contrast to an interpretive rule or a general policy statement, is a "purely legal" question. Final agency action is also present, plaintiffs further argue, because the defendants have done all they intend to do to finalize the MOA.

Finding, as the courts did in Toilet Goods Ass'n and American Civil Liberties Union, that the issues are purely legal and that final agency action has occurred, the court agrees with defendants in this case that those points are outweighed by other factors which make it appropriate to defer judicial review at this time. Plaintiffs claim that the MOA is invalid because the EPA and the Corps did not follow notice and comment rule making procedures as required under 5 U.S.C. § 553 of the APA. Plaintiffs contend that the MOA makes substantive changes in procedure when one applies for a 404 permit. Defendants argue, unlike the respondents in Air Transport, that the MOA describes and explains previously existing legal requirements of the 404(b)(1) Guidelines and is thereby exempt from notice and comment requirements.

Judicial appraisal is "likely to stand on a much surer footing in the context of a specific application" of the MOA. Understanding of the MOA will be enhanced by a particular permit proceeding when "its effects are felt in a concrete way." Abbott Laboratories. Unlike the petitioners in Better Government Ass'n, there is no immediate impact on the plaintiffs' day-to-day business under the present MOA. The plaintiffs are not put to the test, as in the cases cited, of choosing compliance or penalty imposition.

Plaintiffs argue that what has been added to the MOA is the requirement of compensatory mitigation in the form of one-to-one replacement. The MOA, defendants contend, adds no new requirements to a prospective permittee and, further, that the agency retains discretion to determine what mitigation is applicable or appropriate in any given permit application. The court cannot predict what will occur in any given permit proceeding. Whether or not the MOA requires new procedures as plaintiffs contend, or whether the MOA allows the agency to rely on the Guidelines and the MOA in making a permit decision is better developed in a particular permit proceeding. The court finds that the first prong of the ripeness doctrine is not met.

Neither does the court find the second prong, that of hardship, to be met in this particular case. At the time of the permit proceeding the applicant is all owed to show what mitigation may or may not be proper as required under the 404(b)(1) Guidelines. At present no plaintiff claims that the MOA creates impacts adverse to the plaintiff. There are expressed concerns about what might be the effect of the MOA on any given plaintiff. There are also expressed concerns about the MOA's narrowing effect on the permit officer's discretion. These concerns can better be resolved after a permit proceeding has occurred where a concrete showing can then be made to the court that these concerns have been translated into a factual reality.

Plaintiffs contend that their procedural rights were violated when the MOA was developed outside the notice and comment rule making procedures as required under the APA. To address that would require an initial determination whether the MOA represents a substantive rule as plaintiffs contend, or whether it represents an interpretive rule as defendants contend. Finding that the issue is not ripe for review, the court declines to make that determination. Therefore, the court does not reach the further issues addressed in the defendants' motions to dismiss. The court grants defendants' motions to dismiss and denies plaintiffs' motion for summary judgment.

C. Other Motions

Plaintiffs' motion to file brief in excess of page limit filed April 30, 1990 (Docket No. 34) is granted. Defendants' motion for an enlargement of time filed June 19, 1990 (Docket No. 37) is granted. Plaintiff Arco's motion for a preliminary pretrial conference filed January 10, 1990 (Docket No. 37) is granted. Plaintiff Arco's motion for a preliminary pretrial conference filed January 10, 1990 (Docket No. 2) is denied.

IV. Order

Accordingly, IT IS ORDERED:

(1) THAT plaintiffs' motion to file reply brief in excess of page limit filed June 12, 1990;

(2) THAT defendants' motion for enlargement of time to file a reply filed June 19, 1990.

(3) THAT defendants' motion to dismiss filed March 26, 1990 is granted;

(4) THAT defendants' motion to dismiss filed May 25, 1990 is granted;

(5) THAT plaintiffs' motion for summary judgment filed April 30, 1990 is denied;

(6) THAT plaintiff Arco's motion for preliminary pretrial conference is denied; and

(7) THAT the above case is dismissed.

1. The present case, A89-503, represents a consolidated case of case Nos. F89-051, F89-052, J89-024, A90-014 and A90-097.

2. The Court also reached the hardship question and found that hardship was demonstrated.