Pebble Ltd. Partnership v. United States Environmental Protection Agency

MEMORANDUM *

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 decision making 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 , 117 S.Ct. 1154 , 137 L.Ed.2d 281 (1997) (citations and internal quotation marks omitted). The agency action that the plaintiffs challenge — EPA Regional Administrator Dennis…

concurring:

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 *626 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 vfrong. 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 plaintiffs 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…

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NOT FOR PUBLICATION MAY 28 2015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.…