HAWKES CO., INC., еt al., Plaintiffs-Appellants v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellee.
No. 13-3067
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 11, 2014. Filed: April 10, 2015.
782 F.3d 994
American Farm Bureau Federation; National Association of Home Builders; National Mining Association; American Petroleum Institute; Utility Water Act Group; Foundation for Environmental and Economic Progress, Amici on Behalf of Appellants.
There may be asylum protections for an applicant who shows the threatened persecution is motivated by both personal retaliation and a protected motive, Madrigal, 716 F.3d at 506, but Martinez-Galarza presents no evidence to suggest this is the situation here. He does not allege that Sanchez has threatened or attacked other ICE informants. In fact, the other individuals Sanchez has targeted—Martinez-Galarza‘s brother and nephew—suggest even more strongly that Sanchez has a personal grudge with Martinez-Galarza, and is not threatening him as a result of Martinez-Galarza‘s nexus to an alleged particular social group. Accordingly, Martinez-Galarza has failed to meet his burden to establish he is eligible for asylum.
C. Other Claims
It is unclear from Martinez-Galarza‘s brief whethеr he is also seeking review of the BIA‘s determination that he is not eligible for withholding of deportation and CAT protection. Martinez-Galarza states he is petitioning for review of the BIA decision that upheld the IJ‘s decision denying his application for asylum, withholding of removal, protection under CAT and voluntary departure. However, Martinez-Galarza makes no substantive arguments in his brief regarding his eligibility for withholding of removal, CAT protections, or voluntary departure, aside from a fleeting mention that “[p]ast and/or future persecutions are factors considered in asylum, withholding of deportation, and [CAT] claims.” Furthermоre, the BIA noted in its decision that Martinez-Galarza did not challenge the IJ‘s denial of voluntary departure and CAT protection in his petition before the BIA. The BIA has determined that issues not addressed on review are deemed waived. Matter of Edwards, 20 I. & N. Dec. 191, 202 n. 4 (BIA 1990); see also Marksmeier v. Davie, 622 F.3d 896, 902 n. 4 (8th Cir. 2010) (holding claims not argued are waived). Thus, we decline to address Martinez-Galarza‘s claims for withholding of removability, CAT protections, and voluntary departure.
III. CONCLUSION
For the aforementioned reasons, we affirm the BIA‘s decision.
Reed Hopper, argued, Damien Michael Schiff, on the brief, Sacramento, CA, for Plaintiffs-Appellants.
Robert Lundman, USDOJ, Environmental & Natural Resources Division, argued, Daniel R. Dertke, Jennifer S. Neumann, USDOJ, Environmental & Natural Resources Division, on the brief, Washington, DC, for Defendant-Appellee.
Deidre G. Duncan and Karma B. Brown, Ellen Steen, Andrew J. Turner, Katie Sweeney, Danielle Quist, Thomas J. Ward, Amanda E. Aspatore, Peter Tolsdorf, Kristy A.N. Bulleit, on the brief, Washington, DC, for amicus American Farm Bureau Federation, et al.
Before LOKEN, BRIGHT, and KELLY, Circuit Judges.
Hawkes Co., Inc. (Hawkes), wishes to mine peat from wetland property owned by two affiliated companies in northwestern Minnesota. The United States Army Corps of Engineers derailed that plan when it issued an Approved Jurisdictional Determination (“JD“) that the property constitutes “waters of the United States” within the meaning of the Federal Water Pollution Control Act (the “Clean Water Act” or “CWA“), and therefore appellants must have a permit to discharge dredged or fill materials into these “navigable waters.” See
We conclude that both courts misapplied the Supreme Court‘s decision in Sackett v. EPA, --- U.S. ----, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012). Therefore, we reverse.
I.
The CWA requires a permit from the Corps to discharge dredged or fill materials into “navigable waters,” and a permit from the Environmental Protection Agency (or an authorized state agency) to discharge any “pollutant” into navigable waters. See
The CWA imposes heavy civil and criminal penalties on a person who discharges into navigable waters without a required permit, or in violation of an issued permit. See
In Sackett, the EPA issued an administrative compliance order against a person for depositing fill into jurisdictional wetlands without a permit, ordering, among other remedies, that the site be restored. The EPA persuaded the lower courts the order was not subject to “pre-enforcement judicial review.” Applying the test for determining a final agency action in Bennett v. Spear, 520 U.S. 154, 177-78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), a unanimous Court held that the compliance order was a final agency action subject to immediate judicial review under the APA:
[I]t is hard for thе Government to defend its claim that the issuance of the compliance order was just “a step in the deliberative process” when the agency rejected the Sacketts’ attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation (if the EPA brings an enforcement action). 132 S.Ct. at 1373.
The question in this case is whether the Court‘s application of its flexible final agency action standard in Sackett1 should also apply in this case, where appellants seek judicial review of an adverse JD without either cоmpleting the CWA permit process or risking substantial enforcement penalties by mining peat and discharging dredged or fill materials without a permit. That question requires a close look at the allegations in their Amended Complaint.
II.
In reviewing the district court‘s Rule 12(b)(6) dismissal, we accept as true the
After obtaining an option to purchase the property subject to regulatory approval, Kevin Pierce and Hawkes met with Corps and MDNR representatives to discuss Hawkes‘s plan to expand its operations to include the property, which would extend the life of its peat mining ten to fifteen years. In December 2010, Hawkes applied to the Corps for a CWA permit. At a January 2011 meeting, Corps representatives urged Pierce to abandon his plan, emphasizing the delays, cost, and uncertain outcome of the permitting process. Pierce responded that he had an option to purchase and intended to proceed. In March, the Corps sent a letter advising it had made a “preliminary determination” the wetland is a regulated water of the United States and, “at a minimum,” an environmental assessment would be required. At an April meeting, a Corps representative told Pierce a permit would take years and the process would be very costly. During a site visit in early June, another Corps representative told а Hawkes employee that “he should start looking for another job.” In August, the Corps sent Hawkes a letter advising that nine additional information items costing more than $100,000 would be needed, including hydrological and functional resource assessments and an evaluation of upstream potential impacts. In November, Corps representatives met with the land owner and urged that he sell the property to a “wetlands bank,” advising that an environmental impact statement would likely be required, delaying the issuance of any permit for several years.
Appellants challenged the Corps’ preliminary determination. In November, the Corps provided a “draft” JD concluding the property was connected by a “Relatively Permanent Water” (a series of culverts and unnamed streams) that flowed into the Middle River and then into the Red River of the North, a traditional navigable water some 120 miles away. Appellants’ wetland consultant pointed out numerous errors in the analysis. Nonetheless, in February 2012 the Corps issued an Approved JD concluding the property was a water of the United States because of its “significant nexus” to the Red River. See
In October 2012, the Corps’ Deputy Commanding General for Civil and Emergency Operations sustained the appeal, concluding after detailed analysis that the administrative record “does not support [the District‘s] determination that the subject property contains jurisdictional wetlands and waters,” and remanding to the District “for reconsideration in light of this decision.” On December 31, 2012, the Corps nonetheless issued a Revised JD concluding, without additional information, that there is a significant nexus between the property and the Red River of the North, and advising appellants that the Revised JD was a “final Corps permit decision in аccordance with
III.
The APA provides for judicial review of a “final agency action for which there is no other adequate remedy in a court.”
As a general matter, 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.
A.
Though the Corps argues otherwise, we agree with the district court (and every court to consider the issue) that the Revised JD clearly meets the first Bennett factor—it was the consummation of the Corps’ decisionmaking process on the threshold issue of the agency‘s statutory authority. See Belle Co., 761 F.3d at 389-90; Fairbanks N. Star Borough v. U.S. Army Corps of Eng‘rs, 543 F.3d 586, 591-93 (9th Cir. 2008). The regulations provide that an Approved JD “constitute[s] a Corps final agency action.”
The district court concluded that the Approved JD does not satisfy Bennett‘s second factor becausе it is not an agency action “by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.‘” In Sackett, the EPA compliance order required petitioners to restore property they had altered without a permit and subjected them to the risk of $75,000 per day in penalties if they chose to disobey. By contrast, the district court reasoned, appellants “face no such obligations or changes in their rights as a result of their jurisdictional determination.” They “may pursue a permit without a disadvantage.” 963 F.Supp.2d at 876-77.
1. In our view, this analysis seriously understates the impact of the regulatory action at issuе by exaggerating the distinction between an agency order that compels affirmative action, and an order that prohibits a party from taking otherwise lawful action. Numerous Supreme Court precedents confirm that this is not a basis on which to determine whether “rights or obligations have been determined” or that “legal consequences will flow” from agency action.
—In Bennett, the Court held that a Fish and Wildlife Service biological opinion satisfied the second factor because it required the Bureau of Reclamation to comply with its conditions and thereby had “direct and appreciable legal consequences.” 520 U.S. at 158, 178, 117 S.Ct. 1154. Though not self-executing, the biological opinion was mandatory. Likewise, here, the Revised JD requires appellants either to incur substantial compliance costs (the permitting process), forego what they assert is lawful use of their property, or risk substantial enforcement penalties.
—In Abbott Laboratories, the Court held that prescription drug labeling regulations were a final agency action subject to pre-enforcement judicial review because they “purport to give an authoritative interpretation of a statutory provision” that puts drug companies in the dilemma оf incurring massive compliance costs or risking criminal and civil penalties for distributing “misbranded” drugs. 387 U.S. at 152-53, 87 S.Ct. 1507.
—In Frozen Food Express v. United States, 351 U.S. 40, 76 S.Ct. 569, 100 L.Ed. 910 (1956), plaintiff sought judicial review of an Interstate Commerce Commission order declaring that certain agricultural commodities were not exempt from regulations requiring carriers to obtain a permit to transport. Id. at 41-42, 76 S.Ct. 569. As in this case, the order “would have effect only if and when a particular action was brought against a particular carrier.” Abbott Labs., 387 U.S. at 150, 87 S.Ct. 1507. The Court nonetheless held the order reviewable because the “determination by the Commission that a commodity is not an exempt agriсultural product has an immediate and practical impact“; it “warns every carrier, who does not have authority from the Commission to transport those commodities, that it does so at the risk of incurring criminal penalties.” Frozen Food Express, 351 U.S. at 43-44, 76 S.Ct. 569. Here, the Revised JD is a determination regarding a specific property that has an even stronger coercive effect than the order deemed final in Frozen Food Express, which was not directed at any particular carrier. In Port of Boston, 400 U.S. at 70-71, 91 S.Ct. 203, the Court rejected as having “the hollow ring of another era” the contention that an “order lacked finality because it had no independent effect on anyone,” citing Frozen Food Express.
—In Columbia Broadcasting System v. United States, 316 U.S. 407, 62 S.Ct. 1194, 86 L.Ed. 1563 (1942), the Court held that FCC regulations barring the li-
2. The Corps argues, and the district court further concluded, that the Revised JD is not a final agency action “for which there is no other adequate [judicial] remedy,”
In this case, the contention ignores the prohibitive cost of taking either of these alternative actions to obtain judicial review of the Corps’ assertion of CWA jurisdiction over the property. First, as a practical matter, the permitting option is prohibitively expensive and futile. The Supreme Court reported in Rapanos, 547 U.S. at 721, 126 S.Ct. 2208, that the averagе applicant for an individual Corps permit “spends 788 days and $271,596 in completing the process.” Moreover, the Amended Complaint alleged that the Corps’ District representatives repeatedly made it clear to Kevin Pierce, to a Hawkes employee, and to the landowner that a permit to mine peat would ultimately be refused. In our view, this alone demonstrates that the second Bennett factor is satisfied. Moreover, even if appellants eventually complete the permit process, seek judicial review of the permit denial, and prevail, they can never recоver the time and money lost in seeking a permit they were not legally obligated to obtain. Cf. Iowa League of Cities v. EPA, 711 F.3d 844, 868 (8th Cir. 2013).
Second, appellants’ other option—commencing to mine peat without a permit and await an enforcement action—is even more plainly an inadequate remedy. Appellants “cannot initiate that process, and each day they wait for the agency to drop the hammer, they accrue” huge additional potential liability. Sackett, 132 S.Ct. at 1372. Because appellants were forthright in undertaking to obtain a permit, choosing now to ignore the Revised JD and commence peat mining without the permit it requires would expose them to substantial criminal monetary penalties and even imprisonment for a knowing CWA violation. Thus, like the compliance order at issue in Sackett, the Revised JD increases the penalties appellants would risk if they chose to begin mining without a permit. See
The prohibitive costs, risk, and delay of these alternatives to immediate judicial review evidence a transparently obvious litigation strategy: by leaving appellants with no immediate judicial review and no adequate alternative remedy, the Corps will achieve the result its local officers desire, abandonment of the peat mining project, without having to test whether its expan-
In our view, a properly pragmatic analysis of ripeness and final agency action principles compels the conclusion that an Approved JD is subject to immediate judicial review. The Corps‘s assertion that the Revised JD is merely advisory and has no more effect than an environmental consultant‘s opinion ignores reality. “[I]n reality it has a powerful coercive effect.” Bennett, 520 U.S. at 169, 117 S.Ct. 1154. Absent immediate judicial review, the impracticality of otherwise obtaining review, combined with “the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations аlleged in this case ... leaves most property owners with little practical alternative but to dance to the EPA‘s [or to the Corps‘] tune.” “In a nation that values due process, not to mention private property, such treatment is unthinkable.” Sackett, 132 S.Ct. at 1375 (Alito, J., concurring). We conclude that an Approved JD is a final agency action and the issue is ripe for judicial review under the APA.2
The judgment of the district court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
KELLY, Circuit Judge, concurring.
I view whether a JD is reviewable under the APA as a close question. In Sackett, the Supreme Court concluded that a comрliance order issued by the EPA “severely limits [petitioners‘] ability to obtain a permit for their fill from the Army Corps of Engineers [because] [t]he Corps’ regulations provide that, once the EPA has issued a compliance order with respect to certain property, the Corps will not process a permit application for that property unless doing so ‘is clearly appropriate.‘” Sackett v. EPA, --- U.S. ----, 132 S.Ct. 1367, 1372, 182 L.Ed.2d 367 (2012) (internal citation omitted) (quoting
I also note other differences between the compliance order in Sackett and the JD in the present case. A compliance order, once issued, begins the accumulation of penalties (potentially doubled) for each day the landowner remains in violation. Id. A JD, however, has no such penalty scheme. Indeed,
Despite these dissimilarities with the circumstances in Sackett, I agree that Hawkes is left without acceptable options to challenge the JD, absent judicial review. Hawkes‘s choice is to either (1) follow through on their peat-mining plans until either thе EPA issues a compliance order or the Corps commences an enforcement action, to both of which Hawkes could raise lack of CWA jurisdiction as a defense; or (2) apply for a permit (on the grounds that no permit is required) and, if the application is denied, appeal the denial in court. But what happens if Hawkes is, after all, granted a permit yet maintains it never needed one in the first place? It must decline the permit and challenge the original jurisdiction in court. This roundabout process does not seem to be an “adequate remedy” to the alternative of simply аllowing Hawkes to bring the jurisdictional challenge in the first instance and to have an opportunity to show the CWA does not apply to its land at all.
In my view, the Court in Sackett was concerned with just how difficult and confusing it can be for a landowner to predict whether or not his or her land falls within CWA jurisdiction—a threshold determination that puts the administrative process in motion. This is a unique aspect of the CWA; most laws do not require the hiring of expert consultants to determine if they even apply to you or your property. This jurisdictional determination was precisely what the Court deemed reviewable in Sackett. See Sackett, 132 S.Ct. at 1374-75 (Ginsburg, J., concurring). Accordingly, I concur in the judgment of the court.
UNITED STATES of America, Plaintiff-Appellee, v. Billie Gene BATEMON, Defendant-Appellant.
No. 13-3769.
United States Court of Appeals, Eighth Circuit.
Submitted: Dec. 12, 2014. Filed: April 10, 2015.
Counsel who represented the appellant was Larry R. Froelich, Fayetteville, AR.
Counsel who represented the appellee was Edward O. Walker, AUSA, Little Rock, AR.
Before WOLLMAN, COLLOTON, and BENTON, Circuit Judges.
COLLOTON, Circuit Judge.
Billie Gene Batemon pleaded nolo contendere to one count of distributing cocaine base. The district court1 sentenced Batemon to thirty-nine months’ imprisonment. On appeal, Batemon raises arguments concerning the acceptance of his plea and the conduct of his sentencing hearing. We conclude that there is nо basis for relief and therefore affirm the judgment.
A grand jury charged Batemon with one count of distributing cocaine base, in violation of
Before the proceeding adjourned, Batemon spoke up and complained that his attorney had predicted a sentence of probation and failed to perform adequately. Batemon accused counsel of convincing him to plead guilty in order to receive a probationаry sentence, and he declared himself innocent of the charged offense. Counsel denied the allegations, and the court relieved Batemon‘s attorney of his appointment based on Batemon‘s allegations. Insofar as Batemon‘s comments amounted to a motion, the court denied it and then closed the hearing.
On appeal, Batemon argues that the district court violated his constitutional right to the assistance of counsel when the court relieved Batemon‘s counsel of his appointment before the end of the sentencing hearing. Sentencing, of course, is a criticаl stage of a criminal proceeding at which an accused is entitled to the assistance of counsel, but the court already had imposed sentence in this case before counsel was relieved. Batemon contends that his comments to the court were a motion to withdraw his plea, and that he might have formulated the motion more effectively if