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Marquette County Road Commission v. United States Environmental Protection Agency

United States District Court, W.D. Michigan, Northern Division

December 14, 2016




         On May 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 No. 31.)


         Because 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 reconsideration. Id.


         The APA 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.

         Plaintiff 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).

         A. Consummation of the agency's decisionmaking process

         In its 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.

         Here, 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.”).

         Nonetheless, 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).

         Plaintiff 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 § 404(c).

         Moreover, 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).

         In 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 ...

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