     Case: 13-30262   Document: 00512716453     Page: 1   Date Filed: 07/30/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                      FILED
                                                                    July 30, 2014
                                 No. 13-30262
                                                                    Lyle W. Cayce
                                                                         Clerk
BELLE COMPANY, L.L.C.; KENT RECYCLING SERVICES, L.L.C.,

                                           Plaintiffs-Appellants
v.

UNITED STATES ARMY CORPS OF ENGINEERS,

                                           Defendant-Appellee


                Appeal from the United States District Court
                    for the Middle District of Louisiana


Before REAVLEY, DAVIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
      Plaintiff-Appellant Belle Company, L.L.C. owns property in the Parish
of Assumption. Plaintiff-Appellant Kent Recycling, L.L.C. has an option to
purchase the property in the event that it can be used as a solid-waste landfill.
In February 2012, Defendant-Appellee United States Army Corps of Engineers
(“Corps”) issued a jurisdictional determination (“JD”) stating that the property
contains wetlands that are subject to regulation under the Clean Water Act.
Belle and Kent (collectively, “Belle”) sued, alleging that the JD is unlawful and
should be set aside. The district court dismissed the suit for lack of subject-
matter jurisdiction, concluding that the JD is not “final agency action” and
therefore is not reviewable under the Administrative Procedure Act. For the
reasons that follow, we AFFIRM.
    Case: 13-30262        Document: 00512716453             Page: 2    Date Filed: 07/30/2014



                                      No. 13-30262
                                             I.
      The Clean Water Act (“CWA”) prohibits, among other things, the
“discharge of any pollutant” into “navigable waters” unless authorized by a
permit. 33 U.S.C. §§ 1311(a), 1344. The CWA defines navigable waters as “the
waters of the United States.” 33 U.S.C. § 1362(7). Under Section 404 of the
CWA, 33 U.S.C. § 1344, the Corps has authority to issue permits, termed 404
permits, for the discharge of dredged or fill materials into navigable waters.
The regulations that govern the permitting process authorize the Corps to
consult with potential permit applicants prior to receiving, processing, and
issuing or denying individual permits. 33 C.F.R. § 325.1(b). The regulations
also authorize the Corps “to issue formal determinations concerning the
applicability of the Clean Water Act . . . to activities or tracts of land and the
applicability of general permits or statutory exemptions to proposed activities.”
33 C.F.R. §§ 320.1(a)(6); 325.9. The Corps has an administrative appeal process
through    which     it     reviews     an        initial    JD.      33   C.F.R.    §   331.
      Belle’s property has a long history. In 1991, the Corps informed Belle
that the property correctly was designated as prior-converted cropland by the
United States Department of Agriculture (“DOA”) and thus did not constitute
wetlands under the CWA. In 1993, the Corps and the United States
Environmental Protection Agency (“EPA”) promulgated a final rule that
excluded property designated as prior-converted cropland from the definition
of waters of the United States. 33 C.F.R. § 328.3(a)(8). In 1995, the DOA
informed Belle that the property was prior-converted cropland and not a
wetland under the 1990 Food and Security Act. In 2003, however, the Corps
informed Belle that any prior correspondence as to the property’s wetland
status was not valid and that the property did constitute wetlands subject to
Corps regulation. Subsequently, the Natural Resources Conservation Service


                                             2
    Case: 13-30262     Document: 00512716453    Page: 3   Date Filed: 07/30/2014



                                 No. 13-30262
(“NRCS”) issued a technical determination, based on earlier findings, that the
property was commenced-conversion cropland.
      In 2005, NRCS and the Corps jointly promulgated guidance, which
stated that a previous designation as prior-converted cropland would be valid
if a property was devoted to agricultural use but not if it had changed to a
nonagricultural use (the “change-in-use policy”). In 2009, the Corps released
an Issue Paper and Memorandum (collectively, the “Stockton Rules”) for JDs
made in the Jacksonville District in Florida. These documents applied the 2005
Guidance to five properties in the Everglades and found that they were not
prior-converted croplands because they had changed from an agricultural to a
nonagricultural use.
      In May 2009, Belle submitted to the Corps an application for a 404
permit to “conduct clearing and excavation activities to facilitate construction
of a regional landfill” on the property. In June 2009, the Louisiana Department
of Environmental Quality (“LDEQ”) sent a letter to Belle, stating that the
Corps had made a determination that a large portion of the proposed landfill
site was considered wetlands. LDEQ further stated that Belle’s Louisiana
solid-waste permit would require a major modification that reflected the
wetlands requirements in Louisiana regulations, LAC 33:VII.709.A.7-8, and
that Belle should submit its major-modification application no later than 120
days after it received a decision on its 404 permit application. Belle
subsequently abandoned its 404 permit application.
      Almost two years later, in January 2011, on Belle’s request and after a
field inspection by a district engineer, the Corps issued an initial JD, which
stated that part of the property was wetlands and subject to the CWA such
that, as Belle apparently previously had sought, a 404 permit would be
required prior to filling the site. Belle appealed the decision through the
Corps’s administrative appeal process. After an appeal meeting, site visit, and
                                       3
      Case: 13-30262   Document: 00512716453       Page: 4    Date Filed: 07/30/2014



                                    No. 13-30262
review, the division engineer found that portions of Belle’s administrative
appeal had merit. On remand, after additional investigation and review, the
Corps upheld the determination that part of the property is wetlands.
       Belle sued in district court for declaratory and injunctive relief to set
aside the JD as unlawful. The district court granted the Corps’s motion to
dismiss on the ground that it lacked subject-matter jurisdiction over Belle’s
claims because the JD is not final agency action reviewable in court under the
Administrative Procedure Act (“APA”). Belle timely appealed. On appeal, Belle
argues that the district court has subject-matter jurisdiction to review its three
claims: (1) that the JD is arbitrary and capricious and should be invalidated;
(2)   that   the   administrative    appeal   process,   as    applied    to   Belle,
unconstitutionally deprived Belle of liberty and property interests without due
process of law; and (3) that the Corps promulgated the change-in-use policy
without the proper APA rulemaking procedures, and in violation of an
injunction, and improperly applied that policy in the JD.
                                        II.
       We review de novo a district court’s dismissal for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1). Ctr. for Biological Diversity, Inc. v. BP
Am. Prod. Co., 704 F.3d 413, 421 (5th Cir. 2013). “The United States may not
be sued except to the extent it has consented to such by statute.” Shanbaum v.
United States, 32 F.3d 180, 182 (5th Cir. 1994). The APA provides such a
waiver for claims “seeking relief other than money damages.” 5 U.S.C. § 702;
see King v. U.S. Dep’t of Veterans Affairs, 728 F.3d 410, 416 (5th Cir. 2013);
Armendariz–Mata v. U.S. Dep't of Justice, Drug Enforcement Admin., 82 F.3d
679, 682 (5th Cir. 1996). Where, as here, no relevant agency statute provides
for judicial review, the APA authorizes judicial review only of “final agency
action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704.
If there is no final agency action, a court lacks subject-matter jurisdiction. Am.
                                         4
    Case: 13-30262    Document: 00512716453     Page: 5   Date Filed: 07/30/2014



                                 No. 13-30262
Airlines, Inc. v. Herman, 176 F.3d 283, 287 (5th Cir. 1999); see also Sierra Club
v. Peterson, 228 F.3d 559, 565 (5th Cir. 2000) (“Absent a specific and final
agency action, we lack jurisdiction to consider a challenge to agency conduct.”).
      “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.” Bennett v. Spear,
520 U.S. 154, 177–78 (1997) (internal quotation marks and citations omitted).
“In evaluating whether a challenged agency action meets these two conditions,
this court is guided by the Supreme Court’s interpretation of the APA’s finality
requirement as ‘flexible’ and ‘pragmatic.’” Qureshi v. Holder, 663 F.3d 778, 781
(5th Cir. 2011) (citing Abbott Labs. v. Gardner, 387 U.S. 136, 149–50 (1967)).
“The APA’s judicial review provision also requires that the person seeking APA
review of final agency action have ‘no other adequate remedy in court.’” Sackett
v. EPA, 132 S. Ct. 1367, 1372 (2012) (quoting 5 U.S.C. § 704).
      In Sackett, 132 S. Ct. at 1371, the Supreme Court revisited the issue of
final agency action under the CWA. The Sacketts filled a portion of their
undeveloped property with dirt and rocks in preparation for building a house.
Id. at 1370. The EPA then issued a compliance order that contained findings
that the property contained wetlands under the CWA and that the Sacketts
had discharged fill material into the wetlands. Id. at 1370–71. The order
directed the Sacketts immediately to undertake restoration of the property per
an EPA plan and to provide to the EPA access to the site and all documentation
relating to the site. Id. at 1371. The Sacketts disagreed with the order, but the
EPA denied their request for a hearing. Id. The Sacketts sued, and the Ninth
Circuit affirmed the district court’s dismissal for lack of subject-matter


                                       5
    Case: 13-30262    Document: 00512716453     Page: 6   Date Filed: 07/30/2014



                                 No. 13-30262
jurisdiction, holding that the CWA precludes pre-enforcement review of
compliance orders. Id.
      The Supreme Court reversed, holding that the CWA does not preclude
judicial review under the APA. Id. at 1374. The Court concluded that an EPA
compliance order is a final agency action under the APA. Id. As to Bennett
prong one, the order “marks the consummation of the agency’s decisionmaking
process” because “the Findings and Conclusions that the compliance order
contained were not subject to further agency review.” Id. at 1372. Furthermore,
“[t]he mere possibility that an agency might reconsider in light of informal
discussion and invited contentions of inaccuracy does not suffice to make an
otherwise final agency action nonfinal.” Id. As to Bennett prong two, the order
determines rights or obligations because “[b]y reason of the order, the Sacketts
have the legal obligation to restore their property according to an agency-
approved Restoration Work Plan, and must give the EPA access to their
property and to records and documentation related to the conditions at the
Site.” Id. at 1371 (internal quotation marks and citation omitted). Further,
legal consequences flow from issuance of the order because “the order exposes
the Sacketts to double penalties in a future enforcement proceeding. It also
severely limits the Sacketts’ ability to obtain a permit for their fill from the
Army Corps of Engineers. The 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.” Id. at 1371–72. Finally, the Sacketts had no other adequate
remedy in court because “[i]n Clean Water Act enforcement cases, judicial
review ordinarily comes by way of a civil action brought by the EPA under 33
U.S.C. § 1319. But the Sacketts cannot initiate that process, and each day they
wait for the agency to drop the hammer, they accrue, by the Government’s
telling, an additional $75,000 in potential liability.” Id. at 1372. The Court
                                       6
    Case: 13-30262    Document: 00512716453      Page: 7   Date Filed: 07/30/2014



                                 No. 13-30262
emphasized: “The other possible route to judicial review—applying to the
Corps of Engineers for a permit and then filing suit under the APA if a permit
is denied—will not serve either. The remedy for denial of action that might be
sought from one agency does not ordinarily provide an adequate remedy for
action already taken by another agency.” Id. at 1372.
      Belle argues that the Court’s decision in Sackett compels the conclusion
that the JD is reviewable final agency action.
                                       A.
      First, to be final the JD “must mark the consummation of the agency’s
decisionmaking process.” Bennett, 520 U.S. at 177–78. Where an agency has
“asserted its final position on the factual circumstances underpinning” its
action, that is an indication that it marks the consummation of the
decisionmaking process. See Alaska Dep’t of Envtl. Conservation v. EPA, 540
U.S. 461, 483 (2004). Where an action has proceeded through an
administrative appeal process and is not subject to further agency review, that
too is an indication that the action marks the consummation of the
decisionmaking process. See Peoples Nat’l Bank v. Office of Comptroller of
Currency of U.S., 362 F.3d 333, 337 (5th Cir. 2004) (concluding that agency
notification was not consummation of decisionmaking process where regulated
party had not yet utilized administrative appeal process); Exxon Chem. Am. v.
Chao, 298 F.3d 464, 467 (5th Cir. 2002) (concluding that agency remand order
was not consummation of decisionmaking process because there remained a
possibility that regulated party might prevail in its administrative action).
      Prior to Sackett, in Fairbanks N. Star Borough v. U.S. Army Corps of
Eng'rs, 543 F.3d 586, 591 (9th Cir. 2008), the Ninth Circuit concluded that a
JD marks the consummation of the Corps’s decisionmaking process because
the Corps “has asserted its ultimate administrative position regarding the
presence of wetlands on Fairbanks’ property on the factual circumstances upon
                                       7
    Case: 13-30262    Document: 00512716453     Page: 8   Date Filed: 07/30/2014



                                 No. 13-30262
which the determination is predicated.” The JD marks the consummation of a
formal procedure for parties to solicit the Corps’s “official position” about the
scope of CWA jurisdiction. Id. at 592. The district court below also concluded
that the JD is the consummation of the Corps’s decisionmaking process
because there will be no further agency decisionmaking on the issue.
      The Court’s reasoning in Sackett as to Bennett prong one reinforces the
conclusion that the JD is the consummation of the Corps’s decisionmaking
process. A JD is “a written Corps determination that a wetland and/or
waterbody is subject to regulatory jurisdiction under” the CWA. 33 C.F.R.
§ 331.2. Once a JD has proceeded through the administrative appeal process,
the final JD is not subject to further formal review by the agency. See 33 C.F.R.
§ 331.9. Corps regulations further state that “the public can rely on that
determination as a Corps final agency action.” 51 F.R. 41,206-01 (Nov. 1986)
(citing 33 C.F.R. § 320.1(a)(6)). The Corps’s consummation argument—that the
JD is one step at the beginning of the administrative process, that it entails
the possibility of further proceedings on a permit application, and that it could
change over time—rests on too broad a level of generality. The Court in Sackett
rejected that argument, reasoning that the findings and conclusions in the EPA
compliance order, which included a finding that the property was subject to
CWA jurisdiction, “were not subject to further agency review.” Sackett, 132 S.
Ct. at 1372. Furthermore, “[t]he mere possibility that an agency might
reconsider in light of informal discussion and invited contentions of inaccuracy
does not suffice to make an otherwise final agency action nonfinal.” Id.
      Through the JD, the Corps has asserted its final position on the facts
underlying jurisdiction—that is, the presence or absence on Belle’s property of
waters of the United States as defined in the CWA. See Alaska Dep’t of Envtl.
Conservation, 540 U.S. at 483; Fairbanks, 543 F.3d at 593 (finding that a JD
“announces the Corps’ considered, definite and firm position about the
                                       8
     Case: 13-30262       Document: 00512716453         Page: 9     Date Filed: 07/30/2014



                                       No. 13-30262
presence of jurisdictional wetlands on [the] property at the time it is
rendered”). This is evidenced by the fact that the JD was subject to, and
proceeded through, an extensive administrative appeal process within the
Corps and hence is termed a “final” JD. See 33 C.F.R. § 331.9; Peoples Nat’l
Bank, 362 F.3d at 337; Exxon Chem., 298 F.3d at 467.
       We conclude that the JD marks the consummation of the Corps’s
decisionmaking process as to the question of jurisdiction.
                                             B.
       Second, to be final the JD must be an action “by which rights or
obligations have been determined, or from which legal consequences will flow.”
Bennett, 520 U.S. at 178 (internal quotation marks and citation omitted).
Where “the action sought to be reviewed may have the effect of forbidding or
compelling conduct on the part of the person seeking to review it, but only if
some further action is taken by the [agency],” that action is nonfinal and
nonreviewable because it “does not of itself adversely affect complainant but
only affects his rights adversely on the contingency of future administrative
action.” Rochester Tel. Corp. v. United States, 307 U.S. 125, 129–30 (1939); 1 see
also FTC v. Standard Oil Co. of Cal., 449 U.S. 232, 240–41 (1980) (concluding
that agency’s issuance of complaint, which stated it had “reason to believe”
regulated party was violating statute, was not final agency action but merely
“a threshold determination that further inquiry is warranted and that a
complaint should initiate proceedings”); Luminant Generation Co., L.L.C. v.
EPA, ___ F.3d ___, Nos. 12–60694, 13–60538, 2014 WL 3037692, at *3 (5th Cir.
2014) (concluding that EPA’s issuance of notice of violation of Clean Air Act


       1 In Rochester, 307 U.S. at 30, the Court listed as examples of such nonfinal action:
“[O]rders of the Interstate Commerce Commission setting a case for hearing despite a
challenge to its jurisdiction, or rendering a tentative or final valuation under the Valuation
Act, although claimed to be inaccurate, or holding that a carrier is within the Railway Labor
Act and therefore amenable to the National Mediation Board.” (internal citations omitted).
                                              9
   Case: 13-30262     Document: 00512716453     Page: 10    Date Filed: 07/30/2014



                                 No. 13-30262
was not final agency action because, inter alia, “adverse legal consequences
will flow only if the district court determines that Luminant violated the Act
or the SIP” and “if the EPA issued notice and then took no further action,
Luminant would have no new legal obligation imposed on it and would have
lost no right it otherwise employed”); AT & T Co. v. EEOC, 270 F.3d 973, 975
(D.C. Cir. 2001) (“[The agency’s action] must have inflicted an actual, concrete
injury upon the party seeking judicial review. Such an injury typically is not
caused when an agency merely expresses its view of what the law requires of
a party, even if that view is adverse to the party.” (internal quotation marks
and citation omitted)).
      Prior to Sackett, all of the courts, including ours, that had considered the
question held that a JD does not determine rights or obligations or have legal
consequences and thus is not final agency action. See Fairbanks, 543 F.3d at
597; Greater Gulfport Properties, LLC v. U.S. Army Corps of Eng’rs, 194 F.
App’x 250, 250 (5th Cir. 2006) (per curiam) (unpublished); Comm’rs of Pub.
Works of City of Charleston v. United States, No. 93-2061, 30 F.3d 129, at *2
(4th Cir. 1990) (per curiam) (unpublished); Coxco Realty, LLC v. U.S. Army
Corps of Eng’rs, Civil Action No. 3:06-CV-416-S, 2008 WL 640946, at *4–5
(W.D. Ky. Mar. 4, 2008); St. Andrews Park, Inc. v. U.S. Dep’t of Army Corps of
Eng’rs, 314 F. Supp. 2d 1238, 1244–45 (S.D. Fla. 2004); Child v. United States,
851 F. Supp. 1527, 1534–35 (D. Utah 1994); Hampton Venture No. One v.
United States, 768 F. Supp. 174, 175–76 (E.D. Va. 1991); Route 26 Land Dev.
Co. v. U.S. Gov’t, 753 F. Supp. 532, 539–40 (D. Del. 1990); Lotz Realty Co. v.
United States, 757 F. Supp. 692, 695–97 (E.D. Va. 1990).
      Since Sackett, the few courts, including the district court below, that
have considered the question have reasoned to the same conclusion. See
Hawkes Co., Inc. v. U.S. Army Corps of Eng’rs, 963 F. Supp. 2d 868, 873–78 (D.
Minn. 2013) (holding that a Corps JD is not final agency action); Nat’l Ass’n of
                                       10
    Case: 13-30262    Document: 00512716453       Page: 11   Date Filed: 07/30/2014



                                  No. 13-30262
Homebuilders v. EPA, 956 F. Supp. 2d 198, 209–212 (D.D.C. 2013) (explaining
that a Corps determination that a property contains traditional navigable
waters is practically indistinguishable from a JD and thus is not final agency
action).
      Indeed, the Court’s reasoning in Sackett as to Bennett prong two
highlights the determinative distinctions between a JD and an EPA
compliance order. First, and foremost, the compliance order independently
imposed legal obligations because it ordered the Sacketts promptly to restore
their property according to an EPA-approved plan and give the EPA access to
site records and documentation. Sackett, 132 S. Ct. at 1371–72. By contrast,
the JD is a notification of the property’s classification as wetlands but does not
oblige Belle to do or refrain from doing anything to its property. It notifies Belle
that a 404 permit will be required prior to filling, and we are cognizant that
the Corps’s permitting process can be costly for regulated parties. See Rapanos
v. United States, 547 U.S. 715, 721 (2006). But even if Belle had never
requested the JD and instead had begun to fill, it would not have been immune
to enforcement action by the Corps or EPA. See Luminant, 2014 WL 3037692,
at *3 (“The Clean Air Act and the Texas SIP, not the notices, set forth
Luminant’s rights and obligations.”). Indeed, prior to Belle’s request for a JD,
the Corps informed Belle that even if no JD issued, that “does not alleviate
your responsibility to obtain the proper DA permits prior to working in
wetlands that may occur on this property.” 2
      Belle argues that the JD has consequences under Louisiana law—
namely, that LDEQ will require Belle to modify the state permit it previously
acquired for its property. Putting aside that the LDEQ letter Belle cites is



      2As noted previously, Belle did commence the permit process but subsequently
abandoned it for reasons not apparent in the existing record.
                                        11
   Case: 13-30262     Document: 00512716453      Page: 12   Date Filed: 07/30/2014



                                  No. 13-30262
dated 2009, years prior to the 2012 JD that Belle challenges, state-agency
action does not transform nonfinal federal-agency action into final action for
APA purposes. See Ocean Cnty. Landfill Corp. v. EPA, 631 F.3d 652, 656 (3d
Cir. 2011) (“W]here a state actor relies upon a federal agency’s notice, the state
action does not convert the notice into a final agency act under the APA.”)
(citing Hindes v. FDIC, 137 F.3d 148, 163 (3d. Cir. 1988) (citing Air California
v. U.S. Dep’t of Transp., 654 F.2d 616, 621 (9th Cir.1981))); Resident Council
of Allen Parkway Village v. U.S. Dep’t of Housing & Urban Dev., 980 F.2d 1043,
1055–56 (5th Cir. 1993) (concluding that HUD interpretation was not final
agency action despite the fact that it resulted in actions by state housing
authority). Cf. Vieux Carre Prop. Owners, Residents & Assocs., Inc. v. Brown,
875 F.2d 453, 456 (5th Cir. 1989) (explaining that APA is “a route through
which private plaintiffs can obtain federal court review of the decisions of
federal agencies” and concluding that plaintiffs could not challenge state-
agency action even if based on challenged Corps decisions that allegedly
violated a statute). Even assuming that LDEQ’s letter could make federal
action final, the letter requests that Belle submit a permit-modification request
only “after the 404 permit decision” from the Corps because the state
requirements “may be impacted by requirements of a 404 permit.” Thus, this
alleged consequence depends on, and does not inure until, the Corps’s decision
on a future permit application. See Rochester Tel., 307 U.S. at 130; Exxon
Chem., 298 F.3d at 467.
      Second, the compliance order in Sackett itself imposed, independently,
coercive consequences for its violation because it “expose[d] the Sacketts to
double penalties in a future enforcement proceeding,” Sackett, 132 S. Ct. at
1372. By contrast, the JD erects no penalty scheme. It imposes no penalties on
Belle. And neither the JD nor Corps regulations nor the CWA require Belle to
comply with the JD. See Luminant, 2014 WL 3037692, at *3 (“[N]othing in the
                                       12
   Case: 13-30262    Document: 00512716453      Page: 13   Date Filed: 07/30/2014



                                 No. 13-30262
Clear Air Act requires a regulated entity to ‘comply’ with a notice.”). Belle
argues that one factor in calculating civil and criminal penalties in a future
enforcement action is Belle’s “good faith efforts to comply” with the CWA,
which could be undermined because the JD alerts Belle to the presence of
wetlands on its property. See 33 U.S.C. §1319. However, the use of the JD in
assessing future penalties is speculative, whereas in Sackett the order caused
penalties to accrue pending restoration of the property. See Sackett, 132 S. Ct.
at 1372; Fairbanks, 543 F.3d at 595 (noting that § 1319(d) does not mention
JDs or assign them specific evidentiary weight, so the speculative penalties
could be a practical effect but not a legal consequence) (citing Ctr. for Auto
Safety v. NHTSA, 452 F.3d 798, 811 (D.C. Cir. 2006)); see also Energy Transfer
Partners v. F.E.R.C., 567 F.3d 134, 141–42 (5th Cir. 2009) (explaining that the
“expense and annoyance of litigation,” although a substantial burden, “is
different in kind and legal effect from the burdens attending what heretofore
has been considered to be final agency action”) (quoting Standard Oil, 449 U.S.
at 242, 244).
      Third, whereas the compliance order in Sackett severely limited the
Sacketts’ ability to obtain a 404 permit from the Corps, see Sackett, 132 S. Ct.
at 1372, the JD operates oppositely, informing Belle of the necessity of a 404
permit to avoid enforcement action. Significantly for the Court in Sackett,
Corps regulations state: “No permit application will be accepted nor will the
processing of an application be continued when the district engineer is aware
of enforcement litigation that has been initiated by other Federal, state, or
local regulatory agencies, unless he determines that concurrent processing of
an after-the-fact permit application is clearly appropriate.” 33 C.F.R. §
326.3(e)(1)(iv). By contrast, Corps regulations do not impose any such




                                      13
    Case: 13-30262       Document: 00512716453          Page: 14     Date Filed: 07/30/2014



                                       No. 13-30262
restriction with regard to the JD; pertinent here, the JD itself does not state
that it will limit a party’s ability to obtain a permit. 3
       Fourth and finally, the compliance order in Sackett determined that the
Sacketts’ property contained wetlands and that they had discharged material
into those wetlands in violation of the CWA. See Sackett, 132 S. Ct. at 1369–
70. In other words, the order resolved that the Sacketts had violated the CWA
and hence were subject to penalties and had to restore their property. See
Sackett, 132 S. Ct. at 1373 (“As the text (and indeed the very name) of the
compliance order makes clear, the EPA’s deliberation over whether the
Sacketts are in violation of the Act is at an end.”). Indeed, the EPA compliance
order was based, in part, on a finding that the Sacketts’ property contained
wetlands subject to CWA jurisdiction, see id. at 1370; yet the Court did not rely
on that jurisdictional finding as the basis for its decision but relied instead on
the consequences that flowed from the compliance order. See id. at 1371–72.




       3  Belle points to Corps regulations that state: “A determination pursuant to this
authorization shall constitute a Corps final agency action.” § 320.1(a)(6). However, Corps
regulations clarify:
        [E]ven final agency actions must be “ripe” before a court can review them.
        In the past, a number of courts have held that jurisdictional
        determinations are not ripe for review until a landowner who disagrees
        with a JD has gone through the permitting process. The Federal
        Government believes this is the correct result, and nothing in today’s
        rule is intended to alter this position. . . . JDs are not necessarily “final”
        even as an administrative matter. . . . Accordingly, we have decided not
        to address in this rulemaking when a JD should be considered a final
        agency action.
65 F.R. 16,486-01 (Mar. 28, 2000). Thus, the Corps does not interpret the above language to
mean final agency action for APA purposes. Under Auer v. Robbins, 519 U.S. 452, 461 (1997),
an agency’s interpretation of its own regulation receives deference unless it is plainly
erroneous or inconsistent with the regulation. See also Decker v. Nw. Envtl. Def. Ctr., 133 S.
Ct. 1326, 1337 (2013); Elgin Nursing and Rehabilitation Ctr. v. U.S. Dept. Of Health and
Human Servs., 718 F.3d 488, 492–93 (5th Cir. 2013). Regardless, the regulations’ language
is not dispositive. See Exxon Chem., 298 F.3d at 467 n.2; Veldhoen v. U.S. Coast Guard, 35
F.3d 222, 225–26 (5th Cir. 1994); Hampton Venture, 768 F. Supp. at 175; Lotz Realty, 757 F.
Supp. at 697.
                                             14
    Case: 13-30262    Document: 00512716453      Page: 15    Date Filed: 07/30/2014



                                  No. 13-30262
      By contrast, the JD does not state that Belle is in violation of the CWA,
much less issue an order to Belle to comply with any terms in the JD or take
any steps to alter its property. See Luminant, 2014 WL 3037692, at *3
(distinguishing between an EPA notice of violation of the Clean Air Act and
the compliance order in Sackett and concluding that the former was not final
agency action). Moreover, while the Corps, responsive to Belle’s own inquiry,
has made a determination as to the presence of wetlands on Belle’s property,
it renders no regulatory opinion as to Belle’s ultimate goal to build a landfill.
Belle could still obtain a Corps permit to fill, without the presumption
(attached to an EPA compliance order) against issuing a permit. See 33 C.F.R.
§ 326.3(e)(1)(iv). If Belle does not obtain a permit, Corps regulations allow Belle
to initiate suit in court, where Belle may challenge the permit decision as well
as the underlying jurisdiction. See 33 C.F.R. § 331.12. Belle’s proposed
framework, where it could first request a wetlands determination and then
seek judicial reassessment of that regulatory determination but also later seek
separate review of any permit decision based on that jurisdiction, would
disrupt the regulatory review system already in place. See Dresser v. Meba
Med. & Benefits Plan, 628 F.3d 705, 708 (5th Cir. 2010) (“To determine whether
the APA’s default rule of review is applicable, we look to the agency-specific
statutes and rules.”); Beall v. United States, 336 F.3d 419, 427 n.9 (5th Cir.
2003), abrogated on other grounds, Hincks v. United States, 550 U.S. 501 (2007)
(“Congress did not intend the general grant of review in the APA to duplicate
existing procedures for review of agency action.”) (citing Bowen v.
Massachusetts, 487 U.S. 879 (1988)). Furthermore, authorizing judicial review
of JDs, to the extent that it would disincentivize the Corps from providing
them, would undermine the system through which property owners can
ascertain their rights and evaluate their options with regard to their properties
before they are subject to compliance orders and enforcement actions for
                                        15
    Case: 13-30262        Document: 00512716453          Page: 16      Date Filed: 07/30/2014



                                        No. 13-30262
violations of the CWA. The above distinctions between the compliance order
and the JD effectuate both prongs of the Bennett test: the action cannot be only
a final decision, it must be also a final decision that “alter[s] the legal regime”
to which the regulated party is subject. See Bennett, 520 U.S. at 178. We
conclude that, under that standard and under current doctrine, especially
Sackett, the JD is not an action by which rights or obligations have been
determined, or from which legal consequences will flow. 4
       We hold that the JD is not reviewable final agency action under the APA
and affirm the district court’s dismissal of this claim for lack of subject-matter
jurisdiction.
                                              III.
       Belle argues second that the Corps’s administrative appeal process
deprived Belle of its liberty and property interests without due process of law.
The district court did not reach this claim, explaining: “Because the Court finds
that it lacks subject matter jurisdiction, it is not necessary to address Plaintiffs’
remaining claims.” However, the district court dismissed all of the claims



       4  To be final, an agency action also must be one for which there is “no other adequate
remedy in a court.” 5 U.S.C. § 704; see Sackett, 132 S. Ct. at 1372. Even assuming that the
JD met Bennett prong two, Belle may have an adequate judicial remedy because it could
apply for a Corps permit and, if the Corps denies the permit, challenge the denial and the
underlying jurisdiction in court. See 33 C.F.R. § 331.12. In Sackett, the Court found that there
was no adequate alternative to challenge the EPA compliance order for two reasons. First,
the Sacketts could not initiate a challenge to the compliance order because in CWA
enforcement cases the EPA initiates the civil action, and in the meantime the Sacketts had
to wait and accrue potential liability. Id. Second, the process of applying for a Corps permit
and then filing suit if the Corps denied the permit was not adequate because “[t]he remedy
for denial of action that might be sought from one agency does not ordinarily provide an
adequate remedy for action already taken by another agency.” Id. Here, the Corps issued the
JD, so it is not the case that the only alternative remedy is one provided by a different agency.
See C.F.R. §§ 331.10, 331.12. Furthermore, as noted above, Belle is not incurring any liability
and Belle can bring a challenge in court if the Corps denies a future permit application. See
33 C.F.R. § 331.12. Thus, the Corps JD is distinguishable from the EPA compliance order on
this ground as well. See Sackett, 132 S. Ct. at 1372; Dresser, 628 F.3d at 708; Beall, 336 F.3d
at 427 n.9.
                                              16
   Case: 13-30262    Document: 00512716453      Page: 17   Date Filed: 07/30/2014



                                 No. 13-30262
without prejudice, thus impliedly dismissing this claim for lack of subject-
matter jurisdiction under 12(b)(1) and not on the merits under 12(b)(6). Brooks
v. Raymond Dugat Co. L C, 336 F.3d 360, 362 (5th Cir. 2003). We review the
decision to dismiss for lack of subject-matter jurisdiction de novo. Ctr. for
Biological Diversity, 704 F.3d at 421. We may affirm on any ground supported
by the record. Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014).
Furthermore, “the issue of subject matter jurisdiction is subject to plenary
review by this court.” Taylor-Callahan-Coleman Counties Dist. Adult
Probation Dep’t v. Dole, 948 F.2d 953, 956 (5th Cir. 1991).
      Belle raised a facial challenge to the Corps’s administrative appeal
process below, but on appeal raises only an as-applied challenge to the Corps’s
conduct in Belle’s administrative appeal process. Belle argues that this due-
process claim provides an independent basis for jurisdiction under 28 U.S.C. §
1331. Section 1331 provides federal-question jurisdiction for the due-process
claim. See Stockman v. FEC, 138 F.3d 144, 151 n.13 (5th Cir. 1998) (noting
that APA does not create an independent grant of jurisdiction but that
jurisdiction exists under § 1331 and that APA then serves as waiver of
sovereign immunity). However, “28 U.S.C. §1331 is a general jurisdiction
statute and does not provide a general waiver of sovereign immunity.”
Shanbaum, 32 F.3d at 182 (citing Voluntary Purchasing Groups, Inc. v. Reilly,
889 F.2d 1380, 1385 (5th Cir. 1989)). Thus, Belle must prove that the
government waived its immunity. See Taylor-Callahan-Coleman, 948 F.2d at
956 (explaining that § 1331 afforded jurisdiction over plaintiff’s due process
and APA claims against Department of Labor but that plaintiff still had to
establish a waiver of sovereign immunity under APA’s final-agency-action
requirement); see also Smart v. Holder, 368 F. App’x 591, 593 (5th Cir. 2010)
(unpublished) (affirming dismissal of due-process claim against DOJ where
none of the statutes plaintiff cited provided waiver of immunity) (citing Boehms
                                      17
    Case: 13-30262         Document: 00512716453           Page: 18     Date Filed: 07/30/2014



                                         No. 13-30262
v. Crowell, 139 F.3d 452, 462–63 (5th Cir. 1998); S. Sog, Inc. v. Roland, 644
F.2d 376, 380 (5th Cir. Unit A May 1981)). 5
       In neither its complaint nor its briefs on appeal does Belle cite a
statutory waiver of sovereign immunity for its due-process claim or argue that
it is a claim under the APA. The only waiver of sovereign immunity that Belle
cites is the APA. Cf. Doss v. S. Cent. Bell Tel. Co., 834 F.2d 421, 424 (5th Cir.
1987) (“[W]here a complaint fails to cite the statute conferring jurisdiction, the
omission will not defeat jurisdiction if the facts alleged in the complaint satisfy
the jurisdictional requirements of the statute.”) (quoting Hildebrand v.



       5  In a Rule 28(j) letter, Belle cites Alabama-Coushatta Tribe of Tex. v. United States,
No. 13-40644, 2014 WL 3360472, at *3–4 (5th Cir. 2014), where this court held that the APA,
5 U.S.C. § 702, provides a waiver of sovereign immunity for two distinct types of claims: (1)
claims where judicial review is sought only pursuant to the general provisions of the APA;
and (2) claims where judicial review is sought pursuant to a separate statutory or
nonstatutory cause of action. As to the latter type of waiver, this court held, “there only needs
to be ‘agency action’ as set forth by 5 U.S.C. § 551(13).” Id. at *4. Belle does not articulate the
effect of this case on its due-process claim, and, in any event, it does not affect the outcome
here. This court in Alabama-Coushatta relied on Sheehan v. Army & Air Force Exch. Serv.,
619 F.2d 1132, 1139 (5th Cir. 1980), rev’d on other grounds, 456 U.S. 728 (1982), and Trudeau
v. Federal Trade Comm’n, 456 F.3d 178, 186–89 (D.C. Cir. 2006). In Sheehan, 619 F.2d at
1139, this court held that § 702 waives sovereign immunity for statutory and nonstatutory
causes of action, without discussing whether the final-agency-action requirement of § 704
applies to those claims. In Trudeau, 456 F.3d at 345–46, the D.C. Circuit held that the final-
agency-action requirement does not restrict § 702’s waiver of sovereign immunity at all;
instead, it operates as a (12)(b)(6) merits restriction rather than as a 12(b)(1) jurisdiction
restriction. Alabama-Coushatta, see 2014 WL 3360472, at *4, bifurcates the 12(b)(1) analysis
and holds that for the APA to waive sovereign immunity for a claim under the general
provisions of the APA, the claim must challenge a “final agency action” under § 704, whereas
for the APA to waive sovereign immunity for a claim under other statutory or nonstatutory
provisions, the claim must challenge only “agency action” as defined in § 551(13). Even
following Alabama-Coushatta on its own terms, therefore, Belle still would have to show that
the JD is final agency action to survive a 12(b)(6) dismissal of its due-process claim, which,
for the reasons explained above, it has not done. Furthermore, to the extent that is the
approach required by Alabama-Coushatta, it is in tension with the Fifth Circuit cases cited
above, which establish that a lack of “final agency action” is a 12(b)(1) deficiency. Finally, in
both Sackett, 132 S. Ct. at 1371, and Taylor-Callahan-Coleman, 948 F.2d at 956, the plaintiffs
challenged the agency actions on both APA and due-process grounds, and the Supreme Court
and an earlier panel of this court conducted the final-agency-action analysis without
bifurcating the two claims or proceeding to the merits of either.
                                               18
    Case: 13-30262    Document: 00512716453      Page: 19    Date Filed: 07/30/2014



                                  No. 13-30262
Honeywell, 622 F.2d 179, 181 (5th Cir. 1980)). Belle does not argue or establish
that the administrative appeal process that culminated in the JD, as applied
to Belle, is final agency action. See Taylor-Callahan-Coleman, 948 F.2d at 956;
Stockman, 138 F.3d at n.13. Accordingly, we affirm the district court’s
dismissal of this claim for lack of subject-matter jurisdiction.
                                       IV.
      Belle argues third that the Corps promulgated the change-in-use policy
in the Stockton Rules, in violation of APA rulemaking requirements, and that
the Corps violated a nationwide injunction when it applied the Rules in the JD
for Belle’s property. The district court similarly did not reach this claim. Again,
we may affirm on any ground in the record. Gilbert, 751 F.3d at 311.
      On their face the Stockton Rules apply only to the Corps’s Jacksonville
District, and even then only to five applications for approved JDs that were
pending at the time. Nothing in the Stockton Rules purports to apply to Belle’s
property or even to the New Orleans District. Further, nothing in the JD
purports to apply the Stockton Rules to Belle’s property. Indeed, although the
Corps division engineer in Belle’s administrative appeal found no evidence that
the district engineer had used the Stockton Rules, in an abundance of caution
he prohibited the district engineer from using them on remand.
      Additionally, the Stockton Rules govern properties classified as prior-
converted cropland, and Belle’s property was classified as commenced-
conversion cropland at least as early as 2003. Belle cites New Hope Power Co.
v. U.S. Army Corps of Eng’rs, 746 F. Supp. 2d 1272 (S.D. Fl. 2010), which held
that the Stockton Rules were final agency action that violated the APA’s
rulemaking requirements and enjoined the Corps from using them. But the
New Hope Power court characterized the Stockton Rules as governing prior-
converted cropland. Id. at 1274. Moreover, Belle was not a party to that case.
Thus, it is not clear how any action with regard to the Stockton Rules would
                                        19
    Case: 13-30262    Document: 00512716453     Page: 20   Date Filed: 07/30/2014



                                 No. 13-30262
redress Belle’s alleged injury. See Match-E-Be-Nash-She-Wish Band of
Pottawatomi Indians v. Patchak, 132 S. Ct. 2199, 2210 (2012) (“This Court has
long held that a person suing under the APA must satisfy . . . Article III’s
standing requirements.”); United States v. Holy Land Foundation for Relief
and Dev., 445 F.3d 771, 780 (5th Cir. 2006) (explaining that to establish
redressability, a plaintiff must show that there is a substantial likelihood that
the requested relief will remedy the alleged injury-in-fact); see also League of
United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 431 (5th
Cir. 2011) (citing Bennett, 520 U.S. at 167) (explaining that it must be likely,
as opposed to merely speculative, that a favorable decision would redress the
injury); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 105–06 (1998)
(finding failure of redressability requirement where none of the specific items
of relief sought and none the Court could envision under general request would
redress plaintiff’s losses). To the extent that what Belle in fact challenges is
the Corps’s change-in-use policy, the Corps promulgated that policy not in the
Stockton Rules but in its 2005 Guidance. Belle does not challenge that
Guidance on appeal, and in any event such a challenge is barred by the statute
of limitations. 28 U.S.C. § 2401(a).
      If the Stockton Rules are relevant to the determination of this case, it is
only insofar as Belle challenges their alleged presence in the JD. As identified
to us, the record does not bear out that proposition; moreover, the JD is not
reviewable final agency action for the reasons discussed above. Accordingly, we
affirm the district court’s dismissal of this claim for lack of subject-matter
jurisdiction.
                                       V.
      We AFFIRM the district court’s judgment.




                                       20
