Abell et al v. Corps of Engineers
MEMORANDUM RULING re 11 MOTION to Dismiss for Lack of Jurisdiction or, in the Alternative, MOTION to Transfer Case to the District of Alaska filed by U S Army Corps of Engineers, 5 MOTION for Partial Summary Judgment on Plaintiff's Second Claim for Relief filed by Elaine Abell, Edward C Abell, IPOP, LLC. Signed by Judge David C Joseph on 5/19/2023. (crt,LaCombe, L)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
EDWARD C. ABELL, ET AL
CIVIL DOCKET NO. 6:23-CV-00114
JUDGE DAVID C. JOSEPH
U.S. ARMY CORPS OF ENGINEERS MAGISTRATE JUDGE CAROL B.
Before the Court is a MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO TRANSFER
TO THE DISTRICT OF ALASKA (the “Motion”) [Doc. 11] filed by Defendant, the U.S. Army
Corps of Engineers (“Defendant”). An Opposition [Doc. 15] was filed by Plaintiffs,
Edward C. Abell, Elaine Abell, and IPOP, LLC, (“Plaintiffs”), to which Defendant filed
a Reply. [Doc. 18]. For the following reasons, Defendant’s Motion is GRANTED, and
this matter is dismissed for lack of subject matter jurisdiction.
The Clean Water Act (“CWA”), among other things, prohibits the discharge of
dredged or fill materials into navigable waters of the United States unless such
discharge is compliant with Section 404 of the CWA. See 33 U.S.C. §§ 1311, 1344.
Exceptions to the CWA’s general prohibition are managed through the issuance of
permits. § 1334(a). Congress delegated the authority to approve or deny dredging
permits to the U.S. Army Corps of Engineers (the “Corps”). Id. Permit applications
are generally reviewed by the Corps district in which the proposed dredging would
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§ 1344(a); 33 C.F.R. § 323.3(a).
After notice and opportunity for public
comment, the Corps may issue a permit if it “determines that the activities … are
similar in nature, will cause only minimal adverse environmental effects when
performed separately, and will have only minimal cumulative adverse effect on the
environment.” § 1344(e)(1); § 323.6. If the proposed discharge complies with these
guidelines, the Corps “will grant the permit unless issuance would be contrary to the
public interest.” § 323.6(a).
If the permit is denied, the applicant may appeal through the Corps’
administrative appeal process, which is governed by 33 C.F.R. § 331. To
administratively appeal a permit denial, the applicant must submit a Request for
Appeal (“RFA”) to the Corps’ Division Engineer overseeing the district in which the
permit was denied. The RFA must be submitted within 60 days of the initial permit
denial. § 331.6(a). The Division Engineer must then appoint an impartial Review
Officer (“RO”) who neither “perform[ed], [n]or [was] involved with, the preparation,
review, or decision making of the action being appealed.” § 331.1(a); (b)(1). Within
30 days of receiving the RFA, the RO must determine whether the RFA meets the
criteria for appeal set out in § 331.5(a) and notify the applicant in writing if the RFA
is accepted or denied. § 331.5; § 331.7(b).
When an RFA is accepted, the RO “should determine” whether a “site
investigation is needed to clarify the administrative record” within 30 days, and
“should normally conduct any such site investigation within 60 days of receipt of an
acceptable RFA.” § 331.7(c). However, the RO may “extend the time period for review
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… [i]f extenuating circumstances occur at the site” such as “seasonal hydrologic
conditions, winter weather, or disturbed site conditions.” Id. In the event of such
extenuating circumstances, the “site visit must be conducted as soon as practicable
… and the RO must notify the appellant of the delay in writing.” Id.
Along with the potential site investigation, “[a]n appeal conference will be held
for every appeal of a permit denial or a declined permit, unless the RO and the
applicant mutually agree to forego a conference.” § 331.7(e). The appeal conference
“will take place within 60 days of receipt of an [ ] RFA, unless the RO determines that
unforeseen or unusual circumstances require scheduling the conference for a later
date.” Id. Since the “purpose of the appeal conference is to provide a forum that
allows the participants to discuss freely all relevant issues and material facts
associated with the appeal,” the regulation recommends that “[f]or permit denials and
declined permit appeals, any site investigation should be scheduled in conjunction
with the appeal review conference, where practicable.” §§ 331.7(e); 331.7(c).
Once the RO completes his or her review, the Division Engineer makes a final
decision on the merits of the RFA. § 331.7(a). “The Division Engineer will normally
make a final decision on the merits within 90 days of the receipt of an acceptable RFA
unless any site visit is delayed pursuant to § 331.7(c).” § 331.8. If the site visit is
delayed, the Division Engineer will make a final decision within 30 days of the visit.
Id. “In no such case will a site visit delay extend the total appeal process beyond
twelve months from the date of receipt of an acceptable RFA.” 1 Id.
The Government misconstrues the timing requirement for an RFA decision, stating,
“the Corps has until November 2023 to complete its … determination of Plaintiffs’ appeal.”
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Upon the completion of the administrative appeal process, the Division
Engineer will either issue a letter confirming the initial permit denial, or the Division
Engineer will remand the matter to the District Engineer to issue a revised permit
decision consistent with the Division Engineer’s decision. §§ 331.10(a); 331.10(b).
Accordingly, the Corps’ final decision on the permit is either the Division Engineer’s
letter affirming the permit denial, or the District Engineer’s “decision made pursuant
to the division engineer’s remand of the appealed action.” Id. Only when a final
Corps decision has been made may the affected party file legal action in federal court
based on a permit denial. § 331.12 (emphasis added).
Factual Background and Procedural History
Plaintiffs allege that in 2017 they found what may be “the largest gold
discovery ever made on Alaska’s Seward Peninsula.” 2 [Doc. 11-1, p. 15]. As part of
their planned gold mining operation, Plaintiffs applied for a permit to dredge the
Bonanza Channel near Nome, Alaska on March 16, 2018, pursuant to § 404 of the
CWA. [Doc. 1, p. 1]; [Doc. 11-1, p. 11]. After years of delay – and then only after
Plaintiffs had filed a prior lawsuit in this Court (Case No. 22-CV-1353) – the Corps
[Doc. 11-1, p.15]. This is inaccurate and the Corps’ apparent misunderstanding of its own
regulations is concerning.
A plain reading of the applicable regulation requires a decision “as soon as practicable” and
generally within 90 days of receiving an acceptable RFA. § 331.8. If, however, the RO
determines a site visit is necessary and must be delayed due to extraordinary circumstances,
“a final appeal decision will be made within 30 days of the site visit.” Id. Given the dates on
which the parties have scheduled the site visit (July 18-20, 2023), the Corps’ deadline to make
a final appeal decision is August 19, 2023.
Plaintiff IPOP, LLC, is a Nevada-based company that was hired by Rivers of Gold, a
California-based partnership with “many investors,” including Plaintiffs Edward and Elaine
Abell who are residents of Lafayette Louisiana. [Doc. 1, p. 2]; [Doc. 1-1, p. 2].
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issued a decision denying Plaintiffs’ permit application on September 8, 2022. 3 [Doc.
11-1, p. 12]. On November 3, 2022, Plaintiffs filed an RFA, which the Corps accepted
on November 28, 2022. 4 [Doc. 11-1, p. 12]; [Doc. 1, p. 4].
Eight days later, on December 6, 2022, the Corps’ RO informed Plaintiffs that
“[d]ue to the size of the … file for the subject action,” he had granted an extension to
the Alaska District to provide the administrative record until January 10, 2023. [Doc.
11-2, p. 6]. On January 10, 2023, the RO notified Plaintiffs that he granted the Alaska
District another extension, giving them until January 20, 2023, to produce the
administrative record. [Doc. 11-2, p. 5]. Plaintiffs confirmed they had received the
administrative record on January 23, 2023. [Doc. 11-2, p. 5]. That same day – after
the RO declared a site visit would be necessary and asked for Plaintiffs’ availability
between June 20, 2023, and August 11, 2023 – Plaintiffs filed suit asking the Court
The allegations made by the Plaintiffs regarding the series of events preceding their
initial permit denial are troubling. To the extent warranted, undersigned reminds the Corps
in general, and more specifically the District and Division Engineers overseeing this
permitting process, that their positions – like my own – are ones of public trust. We work for
the American people. The officers and employees of the Corps have a duty, mandated by
Congress and funded by the taxpayers, to administer this important part of the Clean Water
Act. Regardless of what the Corps ultimately decides with respect to issuing the requested
permits, both the Plaintiffs and the public at large have the right to expect timely decisions
by the Corps. By unnecessarily delaying any decision, the Corps is, in a very real way,
abrogating its duty to administer this part of the Clean Water Act and failing in the execution
of its important mission. And although the Corps has some discretion in how it accomplishes
its mission, the factors that it may consider in issuing permits are limited to those authorized
by law. The officers and employees of the Corps must perform their duty in accordance with
law and without fear or favor.
On May 20, 2022, Plaintiffs filed suit in this Court seeking to force the Corps to make
a decision regarding their permit application. [Doc. 1-1, p. 1]. That case was ultimately
dismissed by joint stipulation on September 13, 2022, after the Corps issued its decision on
September 8, 2022. [Case No. 6:22-cv-1353, Doc. 18].
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to either: (i) “excuse” Plaintiffs from the Corps’ appeal process; or (ii) address the
allegedly “unreasonable” delay in their appeal. [Doc. 15, p. 6].
On March 23, 2023, before the Corps filed an Answer, Plaintiffs filed a Motion
for Partial Summary Judgment seeking dismissal from the Corps’ administrative
appeal process or action “requiring the Corps to take the lawfully-required steps to
complete [the] appeal in a reasonable amount of time.” [Doc. 5-1, p. 10]. The Corps
filed the instant Motion to Dismiss on March 28, 2023. [Doc. 11].
In their Motion, the Corps alleges that this Court lacks jurisdiction under the
Administrative Procedure Act (“APA”) to hear Plaintiffs’ claims until a final agency
action has been issued. In the event the Court finds it has jurisdiction over Plaintiffs’
claims, the Corps urges that this district is not the proper venue to consider these
claims. 5 [Doc. 11-1, pp. 7-8].
In response, Plaintiffs assert that the Court has
jurisdiction because the exhaustion of administrative remedies is not a prerequisite
to federal courts exercising jurisdiction over administrative action, and further argue
that venue is proper in the Court. [Doc. 15, pp. 6-7].
Specifically, the Defendant requests that the Court transfer this action to the District
of Alaska pursuant to 28 U.S.C. § 1404(a). In finding the Court lacks subject matter
jurisdiction over Plaintiffs’ claims, the Court need not decide Defendant’s Motion to Transfer.
However, without deciding the issue and based on the record currently before the Court, the
Court deems it appropriate to note that if Plaintiffs choose to again seek judicial review once
the Corps has taken final agency action, they should consider the most appropriate venue for
that action given the factors set forth by the Fifth Circuit in In re Volkswagen AG. 371 F.3d
201, 203 (5th Cir. 2004) (per curiam). Here, the proposed dredging location is in Alaska, the
permit application and appeal are being reviewed in Alaska, and there is apparently
substantial local interest in Alaska. Further Plaintiff IPOP, LLC is a Nevada limited liability
company, while the Abells are merely two of “numerous investors.” However, the Court is
without jurisdiction to decide this issue and will only address its merits if and when it is ripe
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LAW AND ANALYSIS
Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move for
dismissal of a plaintiff’s claims for lack of subject matter jurisdiction.
fundamental that “[f]ederal courts are courts of limited jurisdiction.” Kokkonen v.
Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). As such, federal courts
possess “only that power authorized by Constitution and statute.” Id. The court may
dismiss a case for lack of subject matter jurisdiction based on: (i) “the complaint
alone,” (ii) “the complaint supplemented by undisputed facts,” or (iii) “the complaint
supplemented by undisputed facts plus the court’s resolution of disputed facts.”
Flores v. Pompeo, 936 F.3d 273, 276 (5th Cir. 2019) (quoting Robinson v. TCI/US W.
Commc’ns Inc., 177 F.3d 900, 904 (5th Cir. 1997)). As the party invoking jurisdiction,
plaintiff bears the burden of establishing subject matter jurisdiction. Choice Inc. of
Texas v. Greenstein, 691 F.3d 710, 714 (5th Cir. 2012).
Administrative Procedure Act
A. Exhaustion of Administrative Remedies is Jurisdictional
Defendant moves to dismiss Plaintiffs’ claims on the grounds that the Court
lacks subject matter jurisdiction under the APA.
[Doc. 11-1, p. 14].
authorizes judicial review of final agency action when an administrative agency’s
statutory provisions do not directly provide for judicial review. 5 U.S.C. § 704.
However, the APA “explicitly requires exhaustion of all intra-agency appeals
mandated either by statute or by agency rule” before judicial review is available.
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Darby v. Cisneros, 509 U.S. 137, 147 (1993). As such, the only agency actions subject
to judicial review under the APA are those “made reviewable by statute and final
agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704
(emphasis added). Agency action is “final” if two conditions are met: “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 (1997) (internal
quotations and citations omitted).
Though the APA does not state that the
exhaustion requirement is jurisdictional, “[Fifth Circuit] precedent treats the APA’s
judicial review provisions as [a limit] on subject matter jurisdiction.”
Mayorkas, 24 F. 4th 383, 389 (5th Cir. 2022) (citing People’s Nat’l Bank v. Off. Of
Comptroller of Currency, 362 F.3d 333, 336 (5th Cir. 2004)).
Here, the applicable Corps’ regulation states that, “[n]o affected party may file
a legal action in the Federal courts based on a permit denial or a proffered permit
until after a final Corps decision has been made and the appellant has exhausted all
administrative remedies under this part.” § 331.12. Administrative remedies are
considered exhausted when a “final Corps permit decision has been made in
accordance with § 331.10.” § 331.12. Pursuant to § 331.10, “[t]he final Corps decision
on a permit application is the initial decision to issue or deny a permit, unless the
applicant submits an RFA, and the division engineer accepts the RFA.” § 331.10
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In 1999, the Corps attempted to revise its regulations to mandate an
administrative appeal before applicants can seek judicial review. See Administrative
Appeal Process, 64 Fed. Reg. 11708 (March 9, 1999) (“the Corps is including Section
331.12 in this rule to make it explicit that persons dissatisfied with permit decisions
must avail themselves of the administrative appeal process established in this rule,
and have received a final Corps decision on the merits of the appeal, prior to seeking
redress in the Federal courts”).
While this may have been the Corps’ intent, it is not what the regulations
actually say. Section 331.12 provides that, “[t]he appellant is considered to have
exhausted all administrative remedies when a final Corps permit decision is made in
accordance with § 331.10.” Section 331.10 states that “the final Corps decision on a
permit application is the initial decision to issue or deny a permit, unless the
applicant submits an RFA, and the division engineer accepts the RFA, pursuant to
this Part.” Final agency action for purposes of the APA is therefore the initial permit
decision unless an RFA is timely filed and accepted.
Plaintiffs argue that because the regulation does not require parties to file an
administrative appeal, exhaustion is not jurisdictional. [Doc. 15, p. 5]. In support of
their argument, Plaintiffs rely on Amin v. Mayorkas, a case in which the Fifth Circuit
held a plaintiff could challenge an agency’s initial decision in federal court because
the regulation – which stated that the initial agency decision “shall be appealable” –
did not clearly mandate exhaustion. 24 F. 4th 383, 390 (5th 2022). In Amin, the
plaintiff immediately challenged an agency’s initial denial of his visa application in
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federal court. Id. at 388. After the plaintiff filed his lawsuit, the agency conducted
another review of his application, which was ultimately denied.
plaintiff amended his federal complaint, “and the litigation continued.” Id. at 389.
There, the question before the Fifth Circuit was “whether [the plaintiff’s] claim [was]
unreviewable because he failed to appeal the visa denial to [the agency] before filing
suit.” Id. The Fifth Circuit, after: (i) considering the context of the agency regulation
stating that the denial of a visa “shall be appealable,” and (ii) comparing it to other
immigration laws “that unambiguously require exhaustion before judicial review,”
determined that the relevant regulatory language “is [ ] best read as permitting but
not requiring applicants to seek further agency review before undergoing the delay
and expense of federal trial.” Id. at 390. Thus, the Fifth Circuit held that the
regulation at issue did not “clearly” require an administrative appeal and that the
court had “jurisdiction despite [the plaintiff’s] failure to exhaust administrative
Here, Plaintiffs’ reliance on Amin is misguided. The Corps’ regulation is clear
that “no affected party may file a legal action in federal courts based on a permit
denial until after a final Corps decision has been made.” § 331.12 (emphasis added).
Pursuant to the regulation, a “final Corps decision on a permit application is the
initial decision to issue or deny a permit, unless the applicant submits an RFA. 33
C.F.R. § 331.10 (emphasis added). Thus, like the plaintiff in Amin, Plaintiffs could
have immediately challenged their initial permit denial in federal court. However,
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because the Plaintiffs did file an administrative appeal, i.e., the RFA, which was
accepted, there is not yet a final decision by the Corps.
The Court need go no further to determine that there is not a final agency
action to review. Because the Corps has yet to rule on Plaintiffs’ appeal, there is no
decision “mark[ing] the consummation of the agency’s decisionmaking process,”
pursuant to the Corps’ regulations, or determining “rights or obligations [from which]
legal consequences will flow.” Bennett, 520 U.S. at 177 (1997). The Court therefore
lacks jurisdiction to hear Plaintiffs’ claims.
B. Plaintiffs Have Not Shown Sufficient Facts to Excuse Exhaustion
While exhaustion is jurisdictional, Plaintiffs allege, in the alternative, that
they should be excused from exhausting the Corps’ administrative remedies because
“[t]he Corps’ [alleged] misconduct makes further review futile,” and Plaintiffs are not
required to suffer “undue administrative delay.” [Doc. 15, pp. 10-11]. Plaintiffs rely
on McCarthy v. Madigan to advance their argument. 503 U.S. 140 (1992). There, the
Supreme Court stated that while exhaustion is generally required before seeking
relief in federal courts, the Court has generally recognized “three broad sets of
circumstances in which the interest of the individual weigh heavily against requiring
administrative exhaustion.” 6 Id. at 146. The three broad circumstances are: (i)
“undue prejudice … [such as] an unreasonable or indefinite timeframe for
Notwithstanding these exceptions, “[w]here Congress specifically mandates,
exhaustion is required.” Id. at 144 (citing Coit Independence Joint Venture v. FSLIC, 489
U.S. 561, 579 (1989)). If not explicitly required by Congress, “sound judicial discretion
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administrative action,” (ii) “doubt as to whether the agency [is] empowered to grant
effective relief,” and (iii) “where the administrative body is shown to be biased or has
otherwise predetermined the issue before it.” Id. at 146-48 (citations omitted). When
determining whether exhaustion is required, “federal courts must balance the
interest of the individual in retaining prompt access to a federal judicial forum
against countervailing institutional interests favoring exhaustion.”
Id. at 146.
Exhaustion will be particularly favored “when the action under review involves
exercise of the agency’s discretionary power or when the agency proceedings in
question allow the agency to apply its special expertise,” and when “a judicial
controversy may well be mooted.” Id. (citations omitted).
Here, the balancing interests clearly favor exhaustion. First, Plaintiffs are not
subject to any “unreasonable or indefinite timeframe.” Plaintiffs complain that they
are forced to suffer “undue delay” because of the site visit requested by the RO. 7
Where, as here, winter weather makes a site visit “impracticable” for almost half of
the year, the Corps’ regulation provides that the RO “may extend the time period for
review.” § 331.7(c). Though the site visit has delayed the decision on Plaintiffs’
administrative appeal, the Corps’ regulation explicitly states that “[i]n no case will a
site visit delay extend the total appeal process beyond twelve months from the date
Plaintiffs also seek to be excused from exhaustion based on alleged delays by the Corps
in its initial permit denial and the fact that the Corps “may well later argue … that there is
no firm deadline whatsoever.” [Doc. 15, p. 14]. However, neither of these issues are relevant
to the Court’s present inquiry. Essentially, Plaintiffs are attempting to argue the merits of
their case here, but these issues are only ripe for judicial review once a final agency action
has been made or the Corps has gone beyond the time limitations outlined in § 331.8.
(discussed supra, pp. 3-4).
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of receipt of an acceptable RFA.” Id. Plaintiffs cannot claim to suffer an “indefinite”
delay when the Corps’ regulation itself places a maximum twelve-month limitation
on the appeals process. 8
Moreover, because Plaintiffs’ RFA was accepted on
November 28, 2022, the Corps must issue a decision according to its own regulations,
as soon as practicable and, in any event, not later than 30 days after the site visit or
November 28, 2023, whichever is earlier.
Because the regulations allow for
reasonable delay to conduct a site visit, the mere fact that the Corps’ decision was
delayed beyond 90 days, without more, does not give the Court sufficient grounds to
excuse the exhaustion requirement. 9
Second, Plaintiffs have failed to produce sufficient evidence of bias or futility
to excuse exhaustion. Plaintiffs allege that their appeal is futile due to the bias of
both the District and Division Engineers. [Doc. 15, p. 11]. Specifically, Plaintiffs
argue that the “extraordinary and biased conduct” of the District Engineer prompted
Plaintiffs to seek assistance from the Division Engineer, who repeatedly ignored their
efforts and therefore, “confirmed that [he] had no intention of correcting the problem”
during their initial appeal, and that because of this, the “very nature of the Corps’
Similarly, a delay of up to twelve months is not per se “unreasonable.” See McCarthy,
503 U.S. 140, 147 (1992) (finding a possible ten-year delay makes exhaustion unnecessary)
(citing Walker v. Southern R. Co., 385, U.S. 196, 198 (1966) (emphasis added)).
Plaintiffs also assert that the Court has jurisdiction over their unlawful delay claim
pursuant to § 706(1) of the APA. [Doc. 15, p. 14]. However, Section 706 of the APA only
applies to reviewable actions. See 5 U.S.C. §§ 704-706. Reviewable actions are only “agency
action[s] made reviewable by statute and final agency action[s].” § 704. While the Court
shares Plaintiffs’ concerns regarding the Corps’ seemingly excessive delay in making its
initial permit decision, this claim is only reviewable once a final agency action has been made.
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appeal process confirms futility.” 10 [Doc. 15, pp. 12-13]. At bottom, the suggestion
that the appeal is “predetermined” because the Division Engineer allegedly ignored
Plaintiffs’ communications regarding the District Engineer during their initial
permit application and “failed to correct the problem,” is conclusory and does not
prove futility. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 148 (1992) (finding
where the Attorney General has already determined “that the challenged rules of the
prison were validly and correctly applied to petitioner, requiring administrative
review through a process culminating with the Attorney General would be to demand
a futile act”) (citing Houghton v. Shafer, 392 U.S. 639, 640 (1968) (quotations
Moreover, Plaintiffs’ selective reading of the Corps’ appeal process does not
“confirm futility.” Pursuant to the Corps’ regulations, “[t]he division engineer has
the authority and responsibility for administering a fair, reasonable, prompt, and
effective administrative appeal process.” § 331.3(a). Additionally, the RO who assists
the Division Engineer with the appeals process, “will not perform, or have been
involved with, the preparation, review or decision making of the action being
appealed. The RO will be independent and impartial in reviewing any appeal.” §
331.3(b). Rather than demonstrating that the appeals process is “predetermined,”
Additionally, Plaintiffs argue that their initial permit was denied due to the District
Engineer’s bias. The District Engineer’s alleged bias, however, is irrelevant at this stage of
the Court’s inquiry into futility because the District Engineer has no role in the appeals
review process. 33 C.F.R. § 331.7. (“The appeal process will normally be conducted by the
RO … The division engineer may participate in the appeal process as the division engineer
deems appropriate. The division engineer will make the appeal decision on the merits of the
appeal, and provide any instruction, as appropriate, to the district engineer.”).
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the Corps’ regulation takes measures to ensure that appeals are impartial. 11 Thus,
Plaintiffs have failed to make a showing that the Corps’ appeal process is futile.
All told, Plaintiffs’ concerns of delay, bias, and futility, do not outweigh the
Corps’ institutional interest in requiring exhaustion. Because the Corps’ appeal
process serves to allow it to exercise the discretionary power delegated to it by
Congress in the CWA, the issue on appeal directly relates to the Corps’ expertise.
And a decision by the Corps to grant the requested permit may moot Plaintiffs’ claims.
Despite the apparent inefficiency and poor communication exhibited by the Alaska
District of the Corps in considering and denying the permit in the first instance,
Plaintiffs have failed to show how they will suffer “irreparable harm” if required to
wait the relatively insignificant amount of time for the Corps to make its decision on
the RFA. Nor have they demonstrated any “extraordinary circumstances” that would
excuse exhaustion. See, e.g., McCarthy v. Madigan, 503 U.S. 140, 149-50 (1992)
(holding that it would be futile to require a federal prisoner seeking money damages
to exhaust administrative remedies because the agency had no authority to award
money damages); U.S. v. Gutierrez, 443 F. App’x 898, 904 (5th Cir. 2011) (finding
futility when “the inadequacy of the institutions themselves rendered exhaustion
futile.”); Dawson Farms, LLC v. Farm Service Agency, 504 F.3d 592, 606 (5th Cir.
Plaintiffs further allege that the administrative appeal is “little more than an
injurious waste of time” because the regulations state that “[t]he division engineer will not
attempt to substitute his judgment for that of the district engineer regarding a matter of fact,
so long as the district engineer’s determination was supported by substantial evidence in the
administrative record ...” 33 C.F.R. Sec. 331.9(b). If, however, Plaintiffs are correct in that
their initial permit was denied due to bias, then the Division Engineer can substitute his
judgement for that of the District Engineer. This is further indication that the Corps’ appeal
process is not futile or predetermined.
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2007) (“[O]vercoming the jurisprudential requirement for administrative exhaustion
is difficult,” and the exceptions apply only in “extraordinary circumstances.”).
Accordingly, there are insufficient grounds for the Court to excuse Plaintiffs from the
Corps’ administrative appeal process and the Court therefore lacks subject matter
jurisdiction over their claims.
Because the Plaintiffs have yet to exhaust their administrative remedies, the
Court is without jurisdiction to decide the merits of Plaintiffs’ claims.
IT IS HEREBY ORDERED that Defendant’s MOTION TO DISMISS [Doc. 11] is
IT IS FURTHER ORDERED that this matter is DISMISSED without
prejudice for lack of subject matter jurisdiction.
IT IS FURTHER ORDERED that Plaintiffs’ MOTION FOR SUMMARY JUDGMENT
ON THEIR SECOND CLAIM FOR RELIEF
[Doc. 5] is DENIED AS MOOT.
THUS, DONE AND SIGNED in Chambers on this 19th day of May 2023.
DAVID C. JOSEPH
UNITED STATES DISTRICT JUDGE
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