United States District Court, W.D. Michigan, Northern Division
HOLMES BELL UNITED STATES DISTRICT JUDGE
18, 2016, the Court granted Defendants' motion to dismiss
for failure to state a claim against the Environmental
Protection Agency (“EPA”) because the EPA's
actions were not reviewable under the Administrative
Procedures Act (“APA”), 5 U.S.C. §§ 551
et seq. (ECF No. 28.) The matter is before the Court
on Plaintiff's motion for reconsideration in light of the
Supreme Court's decision in U.S. Army Corps of
Eng'rs v. Hawkes Co., 136 S.Ct. 1807 (2016). (ECF
the Federal Rules of Civil Procedure do not provide expressly
for motions for reconsideration, courts customarily treat
them as motions to alter or amend judgment under Federal Rule
of Civil Procedure 59(e). See Huff v. Metro. Life Ins.
Co., 678 F.2d 119, 122 (6th Cir. 1982) (“The
district court properly treated the motion to reconsider as a
motion under Rule 59 to alter or amend judgment.”). The
Rule provides that “[a] motion to alter or amend a
judgment must be filed no later than 28 days after the entry
of the judgment.” Fed.R.Civ.P. 59(e). “A district
court may grant a Rule 59(e) motion only to (1) correct a
clear error of law, (2) account for newly discovered
evidence, (3) accommodate an intervening change in the
controlling law, or (4) otherwise prevent manifest
injustice.” Moore v. Coffee Cty., TN, 402 F.
App'x 107, 108 (6th Cir. 2010). “Rule 59(e) . . .
does not permit parties to effectively re-argue a
case.” Howard v. United States, 533 F.3d 472,
475 (6th Cir. 2008). To succeed on a motion for
reconsideration, Plaintiff must “not only demonstrate a
palpable defect by which the Court and the parties have been
misled, but also show that a different disposition of the
case must result from a correction thereof.” W.D. Mich.
LCivR 7.4(a). “A defect is palpable if it is easily
perceptible, plain, obvious, readily visible, noticeable,
patent, distinct or manifest.” Witherspoon v.
Howes, No. 1:07-cv-981, 2008 WL 4155350, at *1 (W.D.
Mich. Sep. 5, 2008) (citing Compuware Corp. v. Serena
Software Int'l, Inc., 77 F.Supp.2d 816, 819 (E.D.
Mich. 1999)). The decision to grant or deny a motion for
reconsideration under this Local Rule falls within the
district court's discretion. See Evanston Ins. Co. v.
Cogswell Props., LLC, 683 F.3d 684, 691 (6th Cir. 2012).
A motion for reconsideration presents an opportunity for the
Court to address an erroneous factual conclusion, because the
Court overlooked or misconstrued the record, or to correct a
misunderstanding of the law, because the Court applied the
wrong standard, wrong test, relied on bad precedent, or
something similar. Fleet Eng'rs, Inc. v. Mudguard
Tech., LLC, No. 1:12-CV-1143, 2013 WL 12085183, at *1
(W.D. Mich. Dec. 31, 2013). Disagreement with the Court's
interpretations of facts, or applications of the correct law,
rarely provide a sound basis for a motion for
authorizes judicial review of “final agency action for
which there is no other adequate remedy in a court[.]”
5 U.S.C. § 704. There are two conditions that must be
satisfied in order for an agency action to be considered
final under the APA. First, “the action must mark the
consummation of the agency's decisionmaking process-it
must not be of a merely tentative or interlocutory
nature.” Bennett v. Spear, 520 U.S. 154,
177-78 (1997). Second, “the action must be one by which
rights or obligations have been determined, or from which
legal consequences will flow.” Id. However,
“[e]ven if final, an agency action is reviewable under
the APA only if there are no adequate alternatives to APA
review in court.” Hawkes, 136 S.Ct. at 1815.
relies upon Hawkes, a recent Supreme Court decision,
to argue that this Court's opinion contains a palpable
defect, and that a different disposition of the case must
result from a correction thereof. In Hawkes, the
Supreme Court held that an approved jurisdictional
determination (“JD”), which definitively stated
the presence or absence of waters of the United States on a
particular property, was a final agency action.
Hawkes, 136 S.Ct. at 1813. Under
Bennett's first prong, the Supreme Court held
that an approved JD “clearly ‘mark[ed] the
consummation' of the Corps' decisionmaking process on
that question.” Id. Further, “the
definitive nature of approved JDs also [gave] rise to
‘direct and appreciable legal consequences, '
thereby satisfying the second prong of
Bennett[.]” Id. at 1814 (quoting
Bennett, 520 U.S. at 178). The Supreme Court also
held that the two alternatives to direct judicial review of
an approved JD-either discharge fill material without a
permit, risking an EPA enforcement action, or apply for a
permit and seek judicial review if dissatisfied with the
results-were not adequate. Id. at 1815. Therefore,
an approved JD was a reviewable final-agency action. See
Id. at 1816 (affirming Eighth Circuit judgment).
Consummation of the agency's decisionmaking
motion, Plaintiff equates the EPA's objections with an
approved JD. An approved JD is issued after extensive
fact-finding by the Corps, and is typically not revisited if
the permitting process moves forward. Id. at 1814.
Although not dispositive, the Corps has described approved
JDs as final agency action. See 33 CFR §
320.1(a)(6); Hawkes, 136 S.Ct. at 1814; see also
Nat'l Assoc. of Home Builders v. U.S. E.P.A., 956
F.Supp.2d 198, 210 (D.C. Cir. 2015). Likewise, the Supreme
Court has held that approved JDs are definitive rulings by
the Corps. Id.
Plaintiff argues that, after permitting authority transfers
to the Corps, there is nothing left for the EPA to do. That
is not entirely accurate. Indeed, once permitting authority
transfers to the Corps, the EPA lacks authority to withdraw
its objections and return permitting authority to the state.
See Friends of Crystal River v. U.S. E.P.A., 35 F.3d
1073, 1080 (6th Cir. 1994) (“[T]he [Clean Water Act]
specifically provides a time limit in which a state must
comply with EPA objections. A failure on the part of the
state to so conform within the statutory time limit results
in the transfer of authority to the Army Corps. Consequently,
we conclude Congress intends to completely divest the
original agency of jurisdiction, and vest authority in the
Army Corps following expiration of the deadline.”).
the EPA's involvement in the permitting process continues
even after the Corps has permitting authority. Under §
404(b), a permit issued by the Corps must specify the
disposal sites for dredged or fill material, and §
404(c) permits the EPA Administrator to “prohibit the
specification . . . of any defined area as a disposal site .
. . whenever he determines, after notice and opportunity for
public hearings, that the discharge of such materials into
such area . . . will have an unacceptable adverse
effect[.]” 33 U.S.C. § 1344(c); see also
C.F.R. § 323.6(b) (implement § 1344(c)). Thus, the
EPA has statutory authority to object to the permit's
specification of a defined area as a disposal site. Further,
when the Corps reviews a permit application, it will likely
seek input from the EPA. See 33 C.F.R. § 384.5
(noting that Corps officials consult with and seek advice
from all other substantially-affected federal agencies).
urges the Court to review the actions of the EPA and the
Corps separately. The APA defines “agency” to
mean “each authority of the Government of the United
States, whether or not it is within or subject to review by
another agency[.]” 5 U.S.C. § 551(1). It defines
“agency action” to include “the whole or
part of an agency rule, order, license, sanction, relief, or
the equivalent or denial thereof, or failure to act[.]”
5 U.S.C. § 551(13). Plaintiff argues that,
Congress's use of the word “each” shows that,
for the purpose of determining final agency action, the EPA
is to be regarded and treated separately from the Corps.
See Oxford English Dictionary 16 (2d ed. 1989)
(defining each to mean “every (individual of a number)
regarded or treated separately”). Further,
Congress's use of the phrase “whether or not it is
within or subject to review by another agency” supports
this approach. However, looking solely at the EPA, its
involvement is not complete once permitting authority
transfers to the Corps; it retains veto power under §
Plaintiff's interpretation would contravene congressional
intent by essentially ignoring the Corps' permitting
authority to allow applicants immediate access to judicial
review. The Clean Water Act (“CWA”), 33 U.S.C.
§§ 1251 et seq., draws a clear distinction
between final agency actions that resolve the permitting
process-the issuance or denial of the permit by either the
state or the Corps-and intermediate actions that require its
continuation-the EPA's objections and the failure of the
state to timely issue or deny the permit. See Crystal
River, 35 F.3d at 1079. Congress created an ongoing
permitting process, the final result of which is the issuance
or denial of a permit, not the EPA's objections. Further,
both the Corps is not bound by these objections. Rather,
these objections are simply “advisory in nature”
and do not resolve the pending permit request. See
Hawkes, 136 S.Ct. at 1813 (noting the difference between
an approved JD and a preliminary JD).
addition, Bennett's first prong was not at issue
in Hawkes. Hawkes, 136 S.Ct. at 1813
(“[T]he Corps [did] not dispute that an approved JD
satisfie[d] the first Bennett condition.”). As
such, Hawkes does not provide an intervening change
in controlling law with respect to this prong. Therefore,
Plaintiff has failed to satisfy its burden of demonstrating a
palpable defect by which ...