Merlino v. United States

No. 90C-1515WD (W.D. Wash. May 24, 1991)

The court holds that landowners' challenge to the Federal Manual for Identifying and Delineating Jurisdictional Wetlands is not ripe for review. After a consulting firm prepared a report for the landowners using the wetlands delineation methodology in effect at the time, the landowners determined that they were not required to obtain a Federal Water Pollution Control Act § 404 permit from the Corps of Engineers for placement of 200,000 cubic yards of fill on their property. The Corps later informed the landowners that the methodology used in the consulting firm's report had been superseded by the methodology in the Federal Manual and that plaintiffs should revise their application drawings and report to reflect the new procedures. The landowners allege that the Federal Manual is void because it was adopted without following the Administrative Procedure Act's notice and comment rulemaking procedures, and that they acquired a vested property right to have their application evaluated under the wetlands criteria in effect at that time. The court holds that this challenge is not ripe for review. The Corps' request for revised application materials is not final agency action and the Corps has not decided whether plaintiff will be permitted to place the fill on their property. Plaintiffs will be free to challenge any inappropriate use of the Federal Manual as part of a challenge to a final permit decision.

Counsel for Plaintiff
David Halinen
800 Bellevue Way NE, Ste. 376, Bellevue WA 98004
(206)454-8272

Counsel for Defendant
Charles Pinnell
U.S. Attorney's Office
3600 Seafirst Plaza Bldg., 800 Fifth Ave., Seattle WA 98104
(206)442-7970

Scott Schachter

Environment and Natural Resources Division

U.S. Department of Justice, Washington DC 20530

(202)514-2000

[21 ELR 21322]

Dwyer, J.:

Order Granting Motion to Dismiss

I. Background

Plaintiffs own vacant land in Auburn, Washington. On March 10, 1989, plaintiff Gary M. Merlino directed Barghausen Consulting Engineers, Inc. to submit a grading permit application to the city of Auburn on behalf of plaintiffs. The application included a report prepared in 1988 by IES Associates entitled "Wetlands Delineation, Evaluation, and General Biological Overview of the Gary Merlino Mill Creek Property" ("IES Wetlands Report"). By this application, plaintiffs sought to obtain permits from the city authorizing the placement of approximately 200,000 cubic yards of fill on portions of the property at issue, in preparation for development.

In preparing the IES Wetlands Report, IES Associates used the wetlands delineation methodology that was in effect at the time the grading permit application was submitted to Auburn (March 10, 1989). Based on that methodology, plaintiffs determined that they were not required to obtain a permit from the United States Army Corps of Engineers ("Corps") under section 404 of the Clean Water Act, 33 U.S.C. § 1344(a) ("section 404"), in order to undertake the work contemplated in the grading permit application. Plaintiffs accordingly filed no application with the Corps for a permit under section 404.

By letter dated October 27, 1989, plaintiffs requested the Corps to determine whether or not plaintiffs were required to obtain a section 404 permit to carry out the work contemplated in the grading permit application, and to declare whether or not the IES Wetlands Report was valid for purposes of identifying and delineating jurisdictional wetlands on plaintiffs' property. By letter dated November 29, 1989, the Corps informed plaintiffs that the methodology used in the IES Wetlands Report had been superseded by a new methodology, embodied in the Federal Manual for Identifying and Delineating Jurisdictional Wetlands ("Federal Wetlands Manual") (dated January 10, 1989), and that the new methodology would be applied in evaluating applications for permits under section 404 received after March 20, 1989. The Corps requested that plaintiffs have their application drawings and report "revised to show the wetlands delineation in accordance with the new procedures."

Plaintiffs filed a complaint for declaratory and injunctive relief on October 31, 1990. First, plaintiffs alleged that the Federal Wetlands Manual changed the prior criteria for delineating wetlands, resulting in substantial enlargement of the scope of the Corps' jurisdiction over plaintiffs' property, and that the adoption of the Manual without following the notice and comment rulemaking procedures specified in the Administrative Procedure Act ("APA"), 5 U.S.C. § 553(b), rendered the Manual void ab initio, and made any application of the Manual to plaintiffs' situation a violation of their fifth amendment right to procedural due process. Second, plaintiffs alleged that, upon submission of their grading permit application to the city of Auburn on March 10, 1989, they acquired a vested property right to have their application evaluated under the wetlands criteria in effect at that time, and that the Corps' refusal to accept the wetlands delineation set forth in the IES Wetlands Report thus violated plaintiffs' fifth amendment right to due process.

Plaintiffs have now moved for summary judgment on both of these claims. The federal defendants, who are the only remaining defendants in light of the stipulation and order dismissing defendant City of Auburn (April 3, 1991) (Dkt. #28), have moved to dismiss the complaint. They argue that the court lacks subject matter jurisdiction over plaintiffs' claim under the APA because there has been no final agency action, and that plaintiffs' vested rights claim is facially invalid; alternatively, defendants argue that the court lacks subject matter jurisdiction over the case because neither of plaintiffs' claims is ripe for review. All materials filed in support of or opposition to both motions have been fully considered.

II. Discussion

The ripeness doctrine has evolved "to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties." Winter v. California Medical Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1990) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 148-49 (1967)).

Faced with a challenge based on ripeness, the court must evaluate "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Id. (quoting Abbott, 387 U.S. at 149). "A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final." Id. (quoting Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989)). In deciding whether the challenged action is final, the court "looks to whether the agency action represents the final administrative word to insure that judicial review will not interfere with the agency's decision-making process." Id. (quoting State of California, Dep't of Educ. v. Bennett, 833 F.2d 827, 833 (9th Cir. 1987)).

To meet the hardship requirement, the plaintiff must show that [21 ELR 21323] withholding review would result in "direct and immediate" hardship and would entail more than "possible financial loss." Id. (quoting Bennett, 833 F.2d at 833-34).

Plaintiffs have not satisfied the fitness requirement. The Corps responded to plaintiffs' request for a determination regarding the necessity of obtaining a permit under section 404 by requesting that plaintiffs revise their application materials to reflect the new procedures for delineating wetlands. This is not the "final administrative word" on the issue. At this stage of the proceedings, plaintiffs and the court can only speculate as to whether jurisdictional wetlands will be found on plaintiffs' property, and whether plaintiffs will ultimately receive a permit from the Corps to proceed with their plans for filling areas of their property.

Neither have plaintiffs demonstrated "direct and immediate" hardship beyond "possible financial loss." The methodology embodied in the Federal Wetlands Manual has not yet been applied, and no decision has been reached by the Corps as to whether or not plaintiffs will be permitted to place the proposed fill on their property. Denial of review at this time will not prejudice plaintiffs, since they will be free to challenge any inappropriate reliance on or application of the Federal Wetlands Manual as part of a challenge to a final permit decision.

III. Conclusion

For the foregoing reasons, defendants' motion to dismiss is granted, and this case is hereby dismissed without prejudice. Because the court did not consider matters outside the pleadings in reaching its decision, plaintiffs' motion to strike such matters is denied as moot. Plaintiffs' motion for summary judgment is also denied.

The clerk is directed to send copies of this order to all counsel of record.