904 F.3d 1068
9th Cir.2018Background
- Tin Cup, LLC owns a 455-acre parcel in North Pole, Alaska; Flowline Alaska planned a project requiring placement of gravel (a regulated pollutant) and sought Corps permits.
- The Corps’ 1987 Wetlands Delineation Manual used three factors (vegetation, hydric soils, hydrology) and defined "growing season" by soil temperature (19.7 in., ≥5°C).
- Congress’ 1992 and 1993 Energy and Water appropriations acts barred use of the Corps’ 1989 manual and directed continued use of the 1987 Manual; the 1993 Act added language that the Corps "will continue to use the Corps of Engineers 1987 Manual . . . until a final wetlands delineation manual is adopted."
- The Corps issued a 2007 Alaska Regional Supplement (after notice and comment) that defines growing season by vegetation indicators rather than soil temperature; the Corps applied the Alaska Supplement in concluding ~351 acres of Tin Cup’s site were wetlands and issued a permit with mitigation conditions.
- Tin Cup administratively appealed and then sued under the APA arguing the 1992/1993 appropriations required the Corps to use the 1987 Manual’s soil-temperature growing-season definition and thus barred use of the Alaska Supplement.
- The district court granted summary judgment to the Corps; the Ninth Circuit affirmed, holding the 1993 appropriations did not clearly make a permanent substantive change requiring exclusive use of the 1987 Manual.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 1993 appropriations act permanently required the Corps to use only the 1987 Manual (and its soil‑temperature growing‑season definition) | 1993 Act’s language ("will continue" and "until") and paragraph structure show Congress intended a continuing, binding mandate to use the 1987 Manual | Appropriations provisions normally operate only for the fiscal year unless Congress clearly expresses futurity; the 1993 language lacks mandatory words of futurity (e.g., "hereafter") and reads as fiscal‑year funding restriction plus a descriptive expectation | The 1993 Act did not contain the clear statement of futurity required to create a permanent substantive change; provision applies only to the fiscal year absent clearer language; affirmed for Corps |
| Whether the Corps’ Alaska Regional Supplement violates the 1993 Act or exceeds the Corps’ authority under the 1987 Manual | Even if 1993 Act continued the 1987 Manual, that Manual does not forbid regional supplements that adopt local means of determining growing season | The 1987 Manual contemplates site‑specific adjustments and expressly allows local means/approximations and supplements; the Alaska Supplement is authorized and consistent with the Three‑Factor approach | The Alaska Supplement is a permissible regional elaboration of the 1987 Manual and does not conflict with the 1993 Act as properly construed; Corps’ use of the Supplement was lawful |
Key Cases Cited
- Minis v. United States, 40 U.S. (15 Pet.) 423 (1841) (presumption that temporary appropriations statutes do not effect permanent changes absent clear words of futurity)
- Nat. Res. Def. Council v. U.S. Forest Serv., 421 F.3d 797 (9th Cir. 2005) (requiring clear statement of futurity in appropriations acts to make permanent substantive change)
- Seattle Audubon Soc’y v. Evans, 952 F.2d 297 (9th Cir. 1991) (appropriations acts generally operate only for the fiscal year and do not create permanent law)
- Norton v. Southern Utah Wilderness Alliance, 542 U.S. 55 (2004) (distinguishing mandatory statutory language from descriptive uses of "will")
- Ocean Advocates v. U.S. Army Corps of Eng’rs, 402 F.3d 846 (9th Cir. 2005) (standard of review and context for Corps wetlands delineation decisions)