both parties agree that upon receipt of a cease and desist order, the landowner has two other options. One is to apply to the Corps for a permit, and the other is to proceed with its activities on the property and await an enforcement suit by the Corps.
If the landowner applies for a permit, and is either denied a permit or is not satisfied with its conditions, the Corps' decision on the permit is final agency action and a challenge to that decision may be brought in district court. However, the scope of the court's review is then limited to the arbitrary and capricious standard under the Administrative Procedures Act. It should be noted that Leslie does not want a permit, but rather disputes any jurisdiction of the Act over its property.
Both sides agree that Leslie could simply proceed with its activities on the property and wait for the Corps to file an enforcement action in this court. The issue of the jurisdiction of the Act over the property would then be before the court on a de novo basis. However, Leslie would then bear any burdens from being deemed a "willing" violator for having ignored the cease and desist orders.
It does not appear that the Corps has any power to assess penalties, as does the Environmental Protection Agency. See Clean Water Act, section 309(g), 33 U.S.C. § 1319(g).
With those procedures in mind, the court returns to the question of whether the issuance of the cease and desist orders provide a basis for Leslie to invoke the jurisdiction of this court.
As stated, the Corps' first argument is that the present suit is an impermissible pre-enforcement review, and is not a review of a final agency action. The second argument is that the Clean Water Act itself precludes district court action at this stage. These questions have not been squarely answered by the Ninth Circuit. The only conclusions that can be drawn from the history discussed above are inferences from silence. However, because of subsequent decisions by district courts and circuit courts in other circuits, this court concludes that the Corps' issuance of cease and desist orders are not sufficient to create jurisdiction in this court.
This court has jurisdiction to review "final" agency action. 5 U.S.C. §§ 701-04. An agency's action is final for purposes of judicial review if it has "'the status of law'" and "'immediate compliance with [its) terms [is] expected.'" FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 239-40, 66 L. Ed. 2d 416 , 101 S. Ct. 488 (1980) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 152, 18 L. Ed. 2d 681 , 87 S. Ct. 1507 (1967)).
Several recent cases have held that the issuance of a cease and desist order by the Corps is a preliminary determination of jurisdiction and of possible Clean Water Act violations, but is not a final agency action reviewable by a district court. See Mulberry Hills Development Corp. v. United States, 772 F. Supp. 1553 (D. Md. 1991); Banks v. Page, 768 F. Supp. 809 (S.D. Fla. 1991); Route 26 Land Development Ass'n v. United States, 753 F. Supp. 532 (D. Del. 1990); Fercom A quaculture Corp. v. United States, 740 F. Supp. 736 (E.D. Mo. 1990). A final agency determination reviewable by this court occurs when the Corps files a civil enforcement action or when it rules on a permit application. Cease and desist orders issued by the Corps create no penalties and no obligations not already imposed by the act.
Leslie argues that the finality standard should be applied in a flexible and pragmatic manner, citing Abbott Laboratories v. Gardner, 387 U.S. 136, 18 L. Ed. 2d 681 , 87 S. Ct. 1507 (1967). However, that generalized language has been given particularized application to Corps cease and desist orders in the cases cited in this order.
Several cases from other circuits have also held that the Clean Water Act itself precludes district court review at the stage of the issuance of a cease and desist order. See Southern Pines Assoc. v. United States, 912 F.2d 713 (4th Cir. 1990); Hoffman Group, Inc. v. EPA, 902 F.2d 567 (7th Cir. 1990). Those cases analyzed the legislative intent of the Act and concluded that a cease and desist order was not enough to invoke district court jurisdiction. Those cases involved the Environmental Protection Agency, rather than the Corps. However, the jurisdiction defined by the Clean Water Act includes both agencies. And the fact that the EPA, rather than the Corps, was the agency involved in those actions should not alter the analysis regarding district court jurisdiction.
For the above reasons and based upon the authorities cited above, this court concludes that the issuance of a cease and desist order by the Corps is not sufficient to enable this court to resolve the jurisdiction of the Act over the property.
IT IS THEREFORE ORDERED that the defendants' motion for judgment on the pleadings is granted, and the action is dismissed.
Dated: December 31, 1991.
CHARLES A. LEGGE
UNITED STATES DISTRICT JUDGE
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