FILED

NOT FOR PUBLICATION MAY 28 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEBBLE LIMITED PARTNERSHIP; No. 14-35845

ALASKA PENINSULA

CORPORATION, D.C. No. 3:14-cv-00097-HRH

Plaintiffs - Appellants,

MEMORANDUM*

v.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY; DENNIS J.

MCLERRAN, in his official capacity as Regional Administrator of EPA Region 10,

Defendants - Appellees,

NATURAL RESOURCES DEFENSE

COUNCIL; BRISTOL BAY NATIVE

CORPORATION; TROUT UNLIMITED;

UNITED TRIBES OF BRISTOL BAY;

NUNAMTA AULUKESTAI,

Intervenor-Defendants - Appellees.

Appeal from the United States District Court for the District of Alaska H. Russel Holland, Senior District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted May 14, 2015 Anchorage, Alaska

Before: CANBY, BYBEE, and WATFORD, Circuit Judges.

The facts and procedural posture of this case are known to the parties, and

we do not repeat them here. Plaintiffs-appellants Pebble Limited Partnership and

Alaska Peninsula Corporation appeal from the district court’s order dismissing

their complaint for lack of subject matter jurisdiction under Federal Rule of Civil

Procedure 12(b)(1). We affirm the decision of the district court.

The Administrative Procedure Act authorizes the federal courts to review

“final agency action for which there is no other adequate remedy in a court.” 5

U.S.C. § 704. In interpreting this language, the Supreme Court has held that “two

conditions must be satisfied for agency action to be ‘final’: First, the action must

mark the consummation of the agency’s decisionmaking process—it must not be of

a merely tentative or interlocutory nature. And second, the action must be one by

which rights or obligations have been determined, or from which legal

consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations

and internal quotation marks omitted). The agency action that the plaintiffs

challenge—EPA Regional Administrator Dennis McLerran’s February 28, 2014

letter announcing the commencement of review proceedings under Section 404(c)

2 of the Clean Water Act, 33 U.S.C. § 1344(c)—did not satisfy either of these

requirements.

The February 28 letter was not the “consummation” of EPA’s

decisionmaking process on any issue. The letter did not state whether or not EPA

will veto the specification of Bristol Bay as a disposal site for dredged or fill

material; it merely indicated that EPA was beginning a review process to decide

that question. The plaintiffs attempt to sidestep this fact by arguing that the letter

constituted a final determination by EPA on the limited issue of whether EPA has

authority to initiate Section 404(c) proceedings before any party has applied to the

Army Corps of Engineers for a discharge permit, but they are incorrect. EPA

decided that it has such authority in 1979, when it adopted regulations interpreting

Section 404 to that effect. See 40 C.F.R. § 231.1(a). The agency simply acted in

accordance with that preexisting interpretation of the statute when it issued the

February 28 letter; the letter was not a new, final decision on the scope of EPA’s

statutory authority.1

1 We do not decide whether, after EPA has taken final agency action, the plaintiffs could bring a challenge to EPA’s 1979 regulation under this court’s decision in Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991). We merely hold that the February 28 letter was not itself final agency action.

3 Nor did the February 28 letter determine any rights or obligations of the

plaintiffs or otherwise subject them to legal consequences. The plaintiffs argue

that the letter forced them to participate in an agency proceeding that they believe

to be illegal, but participation in a Section 404(c) proceeding is voluntary, and in

any event, an agency’s requiring a party to participate in an agency proceeding is

not the sort of legal consequence indicative of final agency action. See, e.g., FTC

v. Standard Oil Co. of Cal., 449 U.S. 232, 242 (1980). The plaintiffs also point out

that the letter suspended the Corps’ ability to issue them a Section 404 discharge

permit, but this impairment may be only temporary; after the Section 404(c) review

proceeding has concluded, the Corps will be able to issue the plaintiffs a permit

again, assuming that EPA has not chosen to veto specification of Bristol Bay as a

disposal site. That fact distinguishes this case from Sackett v. EPA, where the

Court held that an EPA compliance order was final agency action because, among

many other things, it imposed a severe and indefinite impairment on the Corps’

ability to issue a Section 404 permit for a particular property. See 132 S. Ct. 1367,

1371–72 (2012).

Because the February 28 letter satisfied neither prong of the Bennett test, it

was not final agency action, and the federal courts lack subject matter jurisdiction

to review it. The district court’s judgment is therefore

4

AFFIRMED.2

2 Plaintiffs’ December 11, 2014 motion for judicial notice of a letter from EPA to Representative Darrell Issa is denied, on the grounds that the letter is irrelevant to the issue presented in this appeal. See, e.g., Ruiz v. City of Santa Maria, 160 F.3d 543, 548 n.13 (9th Cir. 1998) (denying request for judicial notice, in part because information to be noticed did not bear on the “relevant issue” before the court).

5

FILED

Pebble Limited Partnership v. EPA, No. 14-35845 MAY 28 2015

MOLLY C. DWYER, CLERK

WATFORD, Circuit Judge, concurring: U.S. COURT OF APPEALS

It’s of no consequence in this case, but I question whether the dismissal here

should have been for lack of subject matter jurisdiction. Our court has previously

indicated (albeit without analysis) that 5 U.S.C. § 704’s requirement of final

agency action is jurisdictional, so today’s disposition is certainly consistent with

circuit precedent. See San Luis Unit Food Producers v. United States, 709 F.3d

798, 801 (9th Cir. 2013). But in my view the D.C. Circuit has persuasively

explained why our court’s precedent on this point is wrong. As that court held in

Trudeau v. FTC, 456 F.3d 178 (D.C. Cir. 2006), § 704 is not a jurisdiction-

conferring statute. Id. at 183–84. It instead confers, together with § 702, a right of

action under federal law, and district courts have subject matter jurisdiction to

adjudicate such actions under the general federal-question statute, 28 U.S.C.

§ 1331. Id. at 185. A plaintiff’s failure to allege final agency action under § 704

should therefore result in dismissal for failure to state a claim upon which relief

may be granted, not dismissal for lack of subject matter jurisdiction.

Unlike the D.C. Circuit, our court has never fully examined the jurisdictional

status of § 704. In a case where it matters, we should take a fresh look at the issue

without feeling bound by our prior, unreasoned determination. Arbaugh v. Y&H

Corp., 546 U.S. 500, 511 (2006).