Tin Cup, Llc v. United States Army Corps of Engineers

Cross MOTION for Summary Judgment

D. AlaskaDecember 22, 2016

JOHN C. CRUDEN Assistant Attorney General AMANDA SHAFER BERMAN (DC Bar #497860) United States Department of Justice Environment and Natural Resources Division 600 D St. N.W., Suite 8000 Washington D.C. 20004 Telephone: 202-514-1950 Email: amanda.berman@usdoj.gov KAREN L. LOEFFLER United States Attorney RICHARD L. POMEROY Assistant U.S. Attorney Attorneys for Defendant the United States Army Corps of Engineers IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ALASKA TIN CUP, LLC, ) No. 4:16-cv-00016-TMB ) Plaintiff, ) THE UNITED STATES ) ARMY CORPS OF v. ) ENGINEERS’ ) CROSS-MOTION FOR UNITED STATES ARMY CORPS ) SUMMARY JUDGMENT OF ENGINEERS, ) ) (Fed. R. Civ. P. 56(a); Defendant. ) D. Alaska L.R. 16.3(c)(2)) __________________________________________) Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 1 of 32 i TABLE OF CONTENTS INTRODUCTION ...............................................................................................................1 STATUTORY AND REGULATORY BACKGROUND ...................................................2 I. Relevant CWA Provisions and Interpretative Case Law .........................................2 II. Corps Regulatory Requirements and Guidance .......................................................5 FACTUAL BACKGROUND ..............................................................................................9 I. Site Description ........................................................................................................9 II. History of Administrative Proceedings ....................................................................9 STANDARD OF REVIEW ...............................................................................................12 I. Summary Judgment ...............................................................................................12 II. Review of Administrative Action ..........................................................................13 ARGUMENT .....................................................................................................................14 I. Decades-old appropriations bills do not bar the Corps from relying on a supplement to its 1987 Manual when making a jurisdictional determination .......14 II. Even if they still applied, the 1992 and 1993 appropriations riders do not bar the Corps from issuing or relying on a supplement to its 1987 Manual ..........19 III. Even the Corps were barred from relying on the Alaska Supplement, the Corps’ determination that the Site contains jurisdictional wetlands and the permit flowing from that determination should be upheld ........................23 CONCLUSION ..................................................................................................................25 Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 2 of 32 ii TABLE OF AUTHORITIES CASES Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220 (1st Cir. 2003) ............................................................................. 15, 16, 17 Auburn Hous. Auth. v. Martinez, 277 F.3d 138 (2d Cir. 2002).............................................................................. 15, 16, 19 Auer v. Robbins, 519 U.S. 452 (1997) ...................................................................................................... 14 Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87 (1983) ........................................................................................................ 13 Building & Constr. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269 (D.C. Cir. 1992) .......................................................................... 15, 16, 18 Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) .................................................................................... 16 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402 (1971) ...................................................................................................... 13 Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261 (2009) ...................................................................................................... 14 Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326 (2013) .................................................................................................. 14 Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089 (9th Cir. 2003) ...................................................................................... 14 In re: EPA & Dep’t of Def. Final Rule, 803 F.3d 804 (6th Cir. 2015) .......................................................................................... 3 Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ........................................................................................................ 4 League of Wilderness Defenders – Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211 (9th Cir. 2008) ............................................................................ 13 Minis v. United States, 40 U.S. 423 (1841) .................................................................................................. 14, 19 Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 3 of 32 iii Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29 (1983) ........................................................................................................ 13 Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953 (9th Cir. 2005) ........................................................................................ 12 Nat. Res. Def. Council v. U.S. Forest Serv. (“NRDC”), 421 F.3d 797 (9th Cir. 2005) .................................................................................. 15, 16 N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993 (9th Cir. 2007) .......................................................................................... 5 N. Cal. River Watch v. Wilcox, 633 F.3d 766 (9th Cir. 2011) .......................................................................................... 5 Occidental Eng'g Co. v. INS, 753 F.2d 766 (9th Cir. 1985) ........................................................................................ 13 Rapanos v. United States, 547 U.S. 715 (2006) .................................................................................................... 4, 5 Seattle Audubon Soc’y v. Evans, 952 F.2d 297 (9th Cir. 1991) ........................................................................................ 15 Smithsfork Grazing Ass’n v. Salazar, 564 F.3d 1210 (10th Cir. 2009) .............................................................................. 15, 18 United States v. IBM., 892 F.2d 1006 (Fed. Cir. 1989)............................................................................... 16, 18 United States v. Langston, 118 U.S. 389 (1886) ...................................................................................................... 15 United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 (1985) .................................................................................................... 3, 4 United States v. Vulte, 233 U.S. 509 (1914) ...................................................................................................... 15 Whatley v. District of Columbia, 447 F.3d 814 (D.C. Cir. 2006) ................................................................................ 16, 18 RULES Fed. R. Civ. P. 56(a) ..................................................................................................... 1, 12 D. Alaska L.R. 16.3 ............................................................................................................ 1 Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 4 of 32 iv D. Alaska L.R. 16.3(c)(2) ................................................................................................. 13 STATUTES 5 U.S.C. §§ 701-706 ..................................................................................................... 1, 12 5 U.S.C. § 706(2)(A)......................................................................................................... 13 31 U.S.C. § 1301(c)(2) ...................................................................................................... 15 33 U.S.C. §§ 1251-1387 ..................................................................................................... 1 33 U.S.C. § 1251(a) ............................................................................................................ 2 33 U.S.C. § 1311(a) ............................................................................................................ 2 33 U.S.C. § 1344(a) & (e) ................................................................................................... 2 33 U.S.C. § 1362(7) ............................................................................................................ 3 33 U.S.C. § 1362(12)(A)..................................................................................................... 3 Energy and Water Development Appropriations Act of 1992, Pub. L. No. 102-104, 105 Stat. 510 .................................................................. 17, 20, 21 Energy and Water Development Appropriations Act of 1993, Pub. L. No. 102-377, 106 Stat. 1315 .................................................... 17, 18, 19, 20, 21 CODE OF FEDERAL REGULATIONS 33 C.F.R. pts. 323, 325 ....................................................................................................... 3 33 C.F.R. § 328.3 ................................................................................................................ 5 33 C.F.R. § 328.3(a)(1), (5), (7) .......................................................................................... 3 33 C.F.R. § 328.3(c)(4) ................................................................................................. 5, 21 33 C.F.R. § 331.2 ................................................................................................................ 7 40 C.F.R. § 230.3 ................................................................................................................ 5 FEDERAL REGISTER NOTICES 80 Fed. Reg. 37,054 (June 29, 2015) .................................................................................. 3 Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 5 of 32 1 CROSS-MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56(a) and Local Rule 16.3, Defendant the United States Army Corps of Engineers (“Corps”) respectfully moves for summary judgment in its favor on the claims asserted by Tin Cup, LLP (“Tin Cup”) pursuant to the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701−706. All factual issues were resolved in administrative proceedings, and there are no triable issues of material fact. INTRODUCTION The Clean Water Act (“CWA”), 33 U.S.C. §§ 1251−1387, protects waters of the United States, including wetlands, from discharges of pollutants except in accordance with the CWA. Under the CWA, the Corps and the U.S. Environmental Protection Agency (“EPA”), the agencies charged by Congress with implementing the CWA, have promulgated regulations describing what waters, including wetlands, fall within the definition of “waters of the United States”—i.e., the wetlands over which the Corps and EPA will assert regulatory jurisdiction. In its Motion for and Memorandum of Points and Authorities in Support of Summary Judgment (ECF Doc. #15) (“Pl.’s Mot.”), Tin Cup challenges the Corps’ determination, in connection with a permit that Tin Cup refused to accept, that wetlands on Tin Cup’s property are within the jurisdiction of the CWA and thus cannot be filled without federal authorization. Tin Cup does not argue that the factual findings on which the Corps predicated that jurisdictional determination were arbitrary or capricious based on the administrative record; rather, it argues only that the Corps improperly relied on a Regional Supplement (the “Alaska Supplement”) to the Corps’ 1987 Wetlands Delineation Manual when concluding that the facts show that several hundred acres of Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 6 of 32 2 the land in question are wetlands. More specifically, Tin Cup claims that the Corps’ issuance of the Alaska Supplement in 2007 was contrary to language in appropriations bills passed by Congress in 1992 and 1993, and thus the Corps cannot rely on that document in making jurisdictional determinations in Alaska. This argument—which is Tin Cup’s sole proffered ground for overturning the permit challenged here—fails for three reasons. First, the cited language in the 1992 and 1993 appropriations bills is no longer operative. Second, even if that language were operative, on its face it does not bar the Corps from issuing regional supplements to the 1987 Manual, as the Corps has in fact done for each region of the country. Third, even if the Court agreed with Plaintiff’s thesis that the Corps improperly relied on the Alaska Supplement when determining that certain areas of Tin Cup’s property are wetlands, the Court should nonetheless uphold the Corps’ decision because the jurisdictional determination on which the challenged permit is based was nonetheless sound. STATUTORY AND REGULATORY BACKGROUND I. Relevant CWA Provisions and Interpretative Case Law. The CWA establishes a comprehensive program to “restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA prohibits the discharge of pollutants, including dredged or fill material, to navigable waters unless authorized by a CWA permit. 33 U.S.C. § 1311(a). Section 404 of the CWA authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits “for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344(a). The Corps may issue individual permits or general permits. See 33 U.S.C. § 1344(a), (e). If a proposed activity could have more Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 7 of 32 3 than a minimal impact, an individual permit is required. The Corps issues individual permits on a case-by-case basis after a resource-intensive review that involves extensive site-specific documentation and review, opportunity for public hearing, public interest review, and a formal determination. See generally 33 C.F.R. pts. 323, 325. The CWA defines “discharge of pollutants” to mean, inter alia, “any addition of any pollutant to navigable waters from any point source.” 33 U.S.C. § 1362(12)(A). The Act further defines “navigable waters” as “the waters of the United States, including the territorial seas.” 33 U.S.C. § 1362(7). Thus, discharges to “waters of the United States” are subject to the CWA. Id. Consistent with Congress’ broad objectives, the Corps and EPA issued regulations further defining “waters of the United States” to include, among others, all waters that are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce; tributaries of such waters; and wetlands adjacent to such (non-wetland) waters. 33 C.F.R. § 328.3(a)(1), (5), (7).1 The Supreme Court has addressed the scope of the term “waters of the United States” several times. In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131-33 (1985), the Supreme Court upheld Corps regulations defining “waters of the United States” as encompassing wetlands adjacent to traditional navigable waters, reasoning that “the Corps’ ecological judgment about the relationship between waters and their adjacent wetlands provides an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act.” Riverside Bayview, 474 U.S. at 134. 1 As Plaintiffs note (Pl.’s Mot. at n.2), last year the Corps and EPA jointly promulgated a rule intended to clarify the regulatory definition of “waters of the United States.” 80 Fed. Reg. 37,054 (June 29, 2015). As Plaintiffs also note, however, that rule has been stayed. See In re: EPA & Dep’t of Def. Final Rule, 803 F.3d 804, 808-09 (6th Cir. 2015). The Corps did not rely on that new rule in its action here. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 8 of 32 4 In Rapanos v. United States, 547 U.S. 715 (2006), the Supreme Court again addressed the scope of the term “waters of the United States” in two consolidated cases involving discharges to wetlands adjacent to non-navigable “ditches or man-made drains” that eventually flowed into traditional navigable waters. Id. at 729. Of the five separate opinions in Rapanos (one plurality, two concurring, and two dissenting), none commanded a majority of the Court. However, all members of the Court agreed that the term “waters of the United States” encompasses some waters that are not navigable in the traditional sense. See id. at 731 (plurality opinion); id. at 767 (Kennedy, J., concurring in the judgment); id. at 792 (Stevens, J., dissenting); accord Riverside Bayview, 474 U.S. at 133; Int’l Paper Co. v. Ouellette, 479 U.S. 481, 486 n.6 (1987). In a plurality opinion written by Justice Scalia, four Justices concluded that the phrase “waters of the United States” encompasses “relatively permanent, standing or continuously flowing bodies of water” connected to traditional navigable waters, Rapanos, 547 U.S. at 739, and also wetlands with a continuous surface connection to such relatively permanent water bodies, id. at 742. Justice Scalia explained that the phrase “relatively permanent” does not necessarily exclude streams that dry up in times of drought or “seasonal rivers, which contain continuous flow during some months of the year but no flow during dry months.” Id. at 732 n.5 (emphasis in original). Justice Kennedy concurred in the judgment, but wrote a separate opinion setting out a different standard for evaluating CWA jurisdiction. Id. at 776. He concluded that jurisdiction extends to wetlands that “possess a ‘significant nexus’ to waters that are or were navigable in fact or that could reasonably be so made.” Id. at 759. A “significant nexus” exists where “the wetlands, either alone or in combination with similarly situated lands in Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 9 of 32 5 the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as ‘navigable.’” Id. at 780. The four dissenting Justices concluded that the term “waters of the United States” encompasses all waters that satisfy either the plurality’s standard or that of Justice Kennedy. See id. at 810. Under the dissenters’ view, to the extent the CWA requires a “significant nexus” to a traditional navigable water, that requirement is “categorically satisfied as to wetlands adjacent to navigable waters or their tributaries.” Id. at 807. In the Ninth Circuit, Justice Kennedy’s “significant nexus” standard sufficient to establish CWA jurisdiction, but jurisdiction premised upon the plurality standard has not been foreclosed. N. Cal. River Watch v. Wilcox, 633 F.3d 766, 769 (9th Cir. 2011) (citing N. Cal. River Watch v. City of Healdsburg, 496 F.3d 993, 999-1000 (9th Cir. 2007)). II. Corps Regulatory Requirements and Guidance “Wetlands” is defined jointly by the Corps and EPA at 33 C.F.R. § 328.3 and 40 C.F.R. § 230.3 respectively. The Corps’ regulatory definition of wetlands provides: “The term wetlands means those areas that are inundated or saturated by surface or groundwater at a frequency and duration sufficient to support, and that under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions.” 33 C.F.R. § 328.3(c)(4). To guide agency personnel as well as private parties attempting to determine whether certain areas qualify as wetlands under that definition, the Corps has promulgated several relevant guidance documents. In 1987, the Corps promulgated a Wetlands Delineation Manual, the purpose of which was “to provide users with guidelines and methods to determine whether an area is Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 10 of 32 6 a wetland for purposes of Section 404 of the CWA.” Pl.’s Mot. Ex. 1 at 1.2 Addressing its scope, the 1987 Manual notes that the question of whether a particular wetland is in fact a “water of the United States” within the Corps’ jurisdiction is a separate, subsequent determination, not addressed by the Manual. Id. at 2. The 1987 Manual identifies three criteria embedded in the Corps’ and EPA’s regulatory definition of wetlands: hydrology, soil, and vegetation. Pl.’s Mot. Ex. 1 at 6. Generally, positive indicators for all three—i.e., wetlands hydrology, hydric soils, and hydrophytic vegetation—are required to classify an area as wetlands. See id. at v & 6. However, the Manual notes that “[c]ertain wetland types, under the extremes of normal circumstances, may not always meet all the wetland criteria defined in the manual,” and that “such wetland areas may warrant additional research to refine methods for their delineation.” Id. at 5. The Corps promulgated another wetlands delineation manual in 1989 (“1989 Manual”). But in response to criticism of the 1989 Manual, in 1991 Corps Headquarters mandated the ongoing use of the 1987 Manual. Beginning in 2006, the Corps promulgated a series of Regional Supplements “designed for use with [the 1987 Manual].” Pl.’s Mot. Ex. 2 at 1. The supplements were developed by Regional Working Groups—groups of wetland experts specific to each region comprised of federal, state and local agency personnel. See id. at ix. Drafts of each were reviewed by the interagency National Advisory Team for Wetland Delineation, as well as an independent review team drawn from the private sector and academia. Id. at x-xi. The Corps released 2 In the hopes of minimizing confusion, the United States will refer to the internal pagination of the documents attached by Plaintiff to its motion, rather than Plaintiff’s supplemental pagination. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 11 of 32 7 each regional supplement for public comment; responded to comments; finalized the supplements and released them for implementation on a one-year interim basis; revised the interim versions; and then published “Version 2.0” of each. See Pl’s Mot. Ex. 5 (copy of web page providing links to public notice of Alaska Supplement) & 6 (Environmental Assessment for Alaska Supplement) at 1-2. To date, the Corps has issued 10 such supplements following this process, addressing all areas of the country.3 An Alaska-specific supplement was issued in 2007. See Pl.’s Mot. Ex. 2, Regional Supplement to the Corps of Engineers Wetlands Delineation Manual: Alaska Region (Version 2.0) (the “Alaska Supplement”). The Corps explained therein that “[r]egional differences in climate, geology, soils, hydrology, plant and animal communities, and other factors are important to the identification and functioning of wetlands,” and that such differences “cannot be considered adequately in a single national manual.” Id. at 1. The Corps noted that the intent of the Supplement was generally “to bring the [1987] Corps Manual up to date with current knowledge and practice in the region and not to change the way wetlands are defined and identified.” Id. However, “[w]here differences in the two documents occur, [the] Regional Supplement takes precedence over the Corps Manual for applications in the Alaska Region.” Id. The Supplement specifically identified the portions of the 1987 Manual that it replaces for purposes of identifying wetlands in Alaska. Id. at 2. The Supplement contains technical guidance and procedures for delineating wetlands that “may” be jurisdictional, but provides that the determination of whether a wetland is subject to CWA jurisdiction 3 A list of the supplements with links to each is available at http://www.usace.army.mil/Missions/Civil-Works/Regulatory-Program-and- Permits/reg_supp/. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 12 of 32 8 “must be made independently of procedures described in this supplement.” Id. at 1; see also 33 C.F.R. § 331.2 (definition of “approved jurisdictional determination”). In the Supplement, the Corps identified a number of important ways that Alaska differs from other areas of the country. Geographically isolated, Alaska has a humid temperate climate along the southeastern coast and a polar climate across the rest of the State. Alaska Supplement, Pl.’s Ex. 2 at 3. “Soils are usually frozen during the winter and the growing season is short.” Id. There is “continuous permafrost” underlying the northern portions of the State. Id. at 4. Nonetheless, “wetlands are more abundant in Alaska than in any other region of the United States,” occupying more than 174 million acres and comprising more than 43% of the State’s land surface. Id. Wetland areas include “salt marshes, bogs, muskegs, fresh marshes, swamps, and wet and moist tundra,” with the last of these area types including “tundra underlain by permafrost.” Id. at 5. Wetlands in the interior portion of Alaska are particularly “common on north-facing slopes where shallow permafrost traps water near the surface.” Id. at 6. Focusing on the third criterion generally used to determine whether an area is a wetland under the 1987 Manual—the existence of wetland hydrology—the Corps explained in the Alaska Supplement that this is the most “ephemeral” of the three criteria, in part because it is the most likely to be impacted by seasonal variations and inextricably linked to the growing season. Pl.’s Mot. Ex. 2 at 46-47. While the Corps generally determines the length of the growing season based on the median dates (i.e. a 50% probability) of 28° Fahrenheit air temperatures in the spring and the fall, this approach is “impracticable” in Alaska due to, inter alia, the scarcity and locations of meteorological Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 13 of 32 9 stations, widely varying elevations and other conditions. Id. at 47-48.4 Accordingly, the Supplement advises that the preferred approach for determining the growing season in Alaska is the observation of vegetation activity, and it prescribes procedures for such observation. Id. at 48-50. FACTUAL BACKGROUND I. Site Description The Site consists of approximately 455 acres owned by Tin Cup, LLC, and located near North Pole, Alaska. COE000718. According to a 2009 delineation report by Tin Cup’s own consultant (Travis/Peterson Environmental Consulting, Inc, or “TPECI”), the Site includes over 350 acres of wetlands. COE000716. II. History of Administrative Proceedings In late 2003, Tin Cup applied to the Corps for a CWA section 404 permit to discharge fill on the Site to construct a pipe fabrication and storage facility. COE000716. The Corps undertook a jurisdictional determination, concluded that the Site contained wetlands, and so informed Tin Cup. Id.; COE001149-50. After Tin Cup made design modifications requested by the Corps and provided additional information, the Corps issued Tin Cup a permit in May 2003 that would have allowed the company to place fill into approximately 165 acres of wetlands. COE000717. However, Tin Cup failed to do so before the permit expired. Id. 4 See also Pl.’s Ex. 8, U.S. Army Corps of Engineers, Developing a Regionalized Version of the . . . Wetlands Delineation Manual: Issues and Recommendations (Aug. 2002), at 23-25 (“growing season” as defined in the 1987 Manual has become less relevant to determining wetlands hydrology because of latitudinal differences, and advising that the Corps adopt an approach more akin to the National Food Security Act Manual, which uses criteria based on fixed periods of saturation within one foot of the surface). Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 14 of 32 10 On May 22, 2008, Tin Cup applied for a new permit. See COE001279- COE001287, COE001288-89. Although the Corps’ first jurisdictional determination for the Site had not yet expired, the Corps requested that Tin Cup complete a new wetlands delineation because the geographical scope of the project had changed and additional information was needed to determine the associated wetlands impacts. COE000717. Based on the resulting 2009 delineation report by Tin Cup’s expert TPECI, site visits, database information, relevant literature, other recent jurisdictional determinations, and additional information, the Corps issued a new jurisdictional determination for the Site on November 8, 2010, concluding again that the Site contained “waters of the United States,” including wetlands adjacent to the Tanana River. COE00711, COE000717-718. Tin Cup administratively appealed the Corps’ jurisdictional determination on eight grounds. COE000653-709. Only one is relevant: the company’s argument that areas on the Site containing permafrost soils cannot be wetlands, and therefore are not within the Corps’ jurisdiction under the CWA, because “permafrost” is defined as soil where the temperature is below 0º Celsius for two or more years, whereas the 1987 Manual states that, to meet the wetlands hydrology criteria, an area must be inundated or saturated for a number of days during the “growing season,” which the Manual defines as the part of the year when average soil temperature is above 5º Celsius. COE000659. The Corps issued its decision on August 18, 2011. COE000634-46. Although the Corps’ appeals officer found that several of Tin Cup’s grounds for appeal had merit and remanded the jurisdictional determination to the Corps to address those issues, see id., he rejected Tin Cup’s argument regarding permafrost. The officer explained that the Corps had developed regional supplements as part of a nationwide effort to address regional Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 15 of 32 11 wetland characteristics, and that the Alaska Supplement clarifies that, given unique regional conditions and regionally-developed methods for determining the growing season, air temperatures and direct observation of vegetation are the relevant considerations in Alaska. COE000643. In October 2012, the Corps issued Tin Cup an initial proffered permit, setting forth the conditions on which the Corps would allow Tin Cup to develop the Site. COE000249-80. In December of that year, Tin Cup objected to the proposed permit conditions on numerous grounds. COE000231-48. Among other objections, Tin Cup argued that the 1987 Manual “excludes permafrost from CWA jurisdiction by definition,” and that the Alaska Supplement does not “expand the Corps’ jurisdiction beyond that which was given in the 1987 Manual.” COE000234-35. In November 2013, the Corps responded to Tin Cup’s objections to the proffered permit, and simultaneously issued a final permit to Tin Cup subject to the conditions identified in the proffered permit. COE000144-96. Responding to the company’s “severely flawed” argument regarding the presence of permafrost at the Site, the Corps explained that, in 1995, the National Research Council (“NRC”)—acting pursuant to Congress’ direction—had issued a report making a number of recommendations for improving the wetlands delineation process, which included the recommendation that “growing season” be redefined on a regional basis. COE000186-87. The NRC opined that defining “growing season” based on the temperature thresholds suggested in the 1987 Manual “fails for wetlands communities in cold regions” and “is particularly inappropriate for defining growing season in permafrost wetlands.” COE000187. The NRC had further explained that most permafrost soils in Alaska have mean annual Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 16 of 32 12 temperatures of less than 0º Celsius, which (if the temperature guidelines in the 1987 Manual were strictly applied) would lead to the “counter to reality” conclusion that permafrost soils have no growing season. Id. Based in part on the NRC’s recommendations, the Corps accordingly had determined that “a definition of growing season for the entire U.S. is not feasible or necessary,” and instead now follows the guidelines set forth on that topic in the regional supplements, including the Alaska Supplement, which calls for direct observation of plant growth, among other indicators of wetlands hydrology. COE000187-88. Tin Cup administratively appealed the final permit. COE000099-124. Of relevance here, the company again argued that the Corps had impermissibly relied on the Alaska Supplement when it concluded that permafrost areas on the Site qualified as wetlands. COE000117-20. The Corps appeals officer again rejected that argument, explaining that the Corps had properly followed the guidance set forth in the Alaska Supplement when determining that the Site contains wetlands. COE000010-12. STANDARD OF REVIEW I. Summary Judgment Under Fed. R. Civ. P. 56(a), summary judgment may issue if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” In record review cases under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706, all issues of fact are resolved in the administrative proceedings; therefore, summary judgment is the procedural vehicle for determining whether the agency’s action adhered to the standards for decision making required by the APA. See, e.g., Native Ecosystems Council v. U.S. Forest Serv., 418 F.3d 953, 959 (9th Cir. 2005); see also D. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 17 of 32 13 Alaska L.R. 16.3(c)(2) (providing that agency action shall be reviewed on cross-motions for summary judgment). Under the APA, it is the role of the agency to resolve factual issues and to arrive at a decision that is supported by the administrative record, whereas “the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.” See Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985). II. Review of Administrative Action Courts review the Corps’ CWA permitting decisions under the deferential standard set forth in the APA: a court may invalidate a final agency action only where it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The scope of review under this standard is narrow; a court may not substitute its judgment for that of the agency. See Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto Ins. Co., 463 U.S. 29, 43 (1983); Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416 (1971). Instead, a court may only overturn the agency decision if it evinces a “clear error of judgment,” or the agency offered an explanation that “runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” League of Wilderness Defenders – Blue Mountains Biodiversity Project v. U.S. Forest Serv., 549 F.3d 1211, 1215 (9th Cir. 2008) (internal quotation marks and citations omitted). The agency action is presumed valid, with the burden of overcoming that presumption on the party challenging the action. Overton Park, 401 U.S. at 415. An agency’s factual determinations on matters within its expertise are also entitled to broad deference. Baltimore Gas & Elec. Co. v. Natural Res. Def. Council, 462 U.S. 87, 103 (1983). Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 18 of 32 14 An agency’s interpretation of its own regulations is “controlling” unless “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (internal quotation marks and citation omitted); accord Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. 261, 274-75 (2009) (accepting EPA’s interpretation of its CWA regulations as correct because it is not “plainly erroneous or inconsistent with the regulation”); Forest Guardians v. U.S. Forest Serv., 329 F.3d 1089, 1097 (9th Cir. 2003) (“[J]udicial review of an agency’s interpretation of its own regulations is limited to ensuring that the agency’s interpretation is not plainly erroneous or inconsistent with the regulation.”). Indeed, “[i]t is well established that an agency's interpretation need not be the only possible reading of a regulation—or even the best one—to prevail.” Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013). ARGUMENT I. Decades-old appropriations bills do not bar the Corps from relying on a supplement to its 1987 Manual when making a jurisdictional determination. Plaintiff claims that language in appropriations bills for fiscal years 1992 and 1993 bars the Corps from using guidelines set forth in any document besides the 1987 Manual—including the Alaska Supplement thereto—when making wetlands delineations in Alaska. Those decades-old appropriations bills have no such lasting effect. It is long and well established that if Congress wishes for language in an appropriations bill to have permanent effect, it must say so explicitly. See Minis v. United States, 40 U.S. 423, 445 (1841) (“It would be somewhat unusual, to find engrafted upon an act making special and temporary appropriations, any provision which was to have a general and permanent application to all future appropriations. Nor ought such an intention on the part of the legislature to be presumed . . . .”); see also United States v. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 19 of 32 15 Vulte, 233 U.S. 509, 514–15, (1914); United States v. Langston, 118 U.S. 389, 394 (1886). In accordance with this deeply rooted Supreme Court jurisprudence, Congress itself has expressly provided that “an appropriation in a regular, annual appropriation law may be construed to be permanent or available continuously only if the appropriation . . . expressly provides that it is available after the fiscal year covered by the law in which it appears.” 31 U.S.C. § 1301(c)(2). The Ninth Circuit and most other Courts of Appeals have accordingly held that a provision in an annual appropriations bill presumptively applies only for that fiscal year, absent express language to the contrary. See Nat. Res. Def. Council v. U.S. Forest Serv. (“NRDC”), 421 F.3d 797, 806 n.19 (9th Cir. 2005) (“‘appropriations acts are generally only in force during the fiscal year of the appropriation and do not work a permanent change in the substantive law’”) (quoting Seattle Audubon Soc’y v. Evans, 952 F.2d 297, 304 (9th Cir. 1991)); Smithsfork Grazing Ass’n v. Salazar, 564 F.3d 1210, 1216 (10th Cir. 2009) (provisions in appropriations bills are permanent only where the bill expressly so provides); Atl. Fish Spotters Ass’n v. Evans, 321 F.3d 220, 224 (1st Cir. 2003) (“[a] provision in an annual appropriations bill presumptively applies only during the fiscal year to which the bill pertains [unless] . . . the appropriations bill expressly provides that it is available after the fiscal year”); Auburn Hous. Auth. v. Martinez, 277 F.3d 138, 146 (2d Cir. 2002) (noting “presumption that a provision contained in an appropriation act applies only in the applicable fiscal year”); Building & Constr. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273 (D.C. Cir. 1992) (“While appropriation acts . . . can substantively change existing law, there is a very strong presumption that they do not, . . . and that when they do, the change is only intended for one fiscal year.”); Chiles v. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 20 of 32 16 Thornburgh, 865 F.2d 1197, 1203 (11th Cir. 1989) (“Riders attached to appropriations bills do not survive past the period for which the funds are appropriated.”); United States v. IBM, 892 F.2d 1006, 1009 (Fed. Cir. 1989) (“While the [ ] provision does not itself indicate whether it was restricted to fiscal year 1977, because it is contained in an appropriations act . . . we presume that it was.”); see also U.S. Gov’t Accountability Off., Principles of Federal Appropriations Law 2-86 (4th ed. 2016) (“GAO Principles”). Thus, the language from the 1992 and 1993 Appropriations Acts on which Plaintiff bases its claim presumptively applied only during those two fiscal years. To overcome that strong presumption, Plaintiffs must point to words of “futurity” that plainly convey Congress’ intent that the provisions in question were to have an indefinite ongoing effect. NRDC, 421 F.3d at 806 n.19; Atl. Fish Spotters, 321 F.3d at 225. These are usually phrases like “to apply in all future years.” Martin, 961 F.2d at 274; see also Whatley v. District of Columbia, 447 F.3d 814, 819-20 (D.C. Cir. 2006) (holding that a provision that stated that “none of the funds appropriated under this Act, or in appropriations Acts for subsequent fiscal years, may be made available to pay attorneys’ fees” was intended to apply permanently) (emphasis in original). At the very least, Congress must use a term like “hereafter” to indicate its intent that a provision was intended to apply indefinitely into the future. See NRDC, 421 F.3d at 806 n.19; but see Auburn Housing, 277 F.3d at 146-47 (rejecting argument that “hereafter” was sufficient to show Congressional intent for a provision to apply indefinitely where another provision in the same bill stated that it would apply in “each fiscal year thereafter”). The key portions of the 1992 and 1993 Appropriations Acts do not contain “words of futurity” that clearly express a Congressional intent for the text to apply Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 21 of 32 17 indefinitely into the future. Both the Energy and Water Development Appropriations Act of 1992 (“1992 Appropriations Act”), Pub. L. No. 102-104, 105 Stat. 510, and the Energy and Water Development Appropriations Act of 1993 (“1993 Appropriations Act”), Pub. L. No. 102-377, 106 Stat. 1315, are described at the outset as acts “making appropriations for energy and water development for the fiscal year.” And the key language in both bills that Plaintiffs would interpret as indefinitely constraining the Corps to rely only on the 1987 Manual when making wetlands determinations begins: “None of the funds in this Act shall be used to identify or delineate any land as a ‘water of the United States’ under the [1989 Manual] or any subsequent manual . . . .” 105 Stat. at 518 & 106 Stat. at 1324 (emphasis added). That language plainly speaks only to the Corps’ use of funds to make wetlands determinations during the 1992 and 1993 fiscal years and thus, at most, bars the Corps from relying on documents other than the 1987 Manual only during those years. Indeed, the fact that Congress reenacted the same language two years in a row strongly suggests that Congress did not expect that language to be interpreted as having permanent effect. See Atl. Fish Spotters, 321 F.3d at 227-28 (Congress’ “repetition” of a provision in consecutive years indicates that it “plainly intended [the provision] as temporary, not permanent, law”); GAO Principles at 2–30 to 2–31 (“[R]epeated inclusion of a provision in annual appropriation acts indicates that it is not considered or intended by Congress to be permanent.”). Plaintiffs point to an additional line found only in the 1993 Appropriations Act, which at first glance might appear to speak more broadly: “Furthermore, the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual, as it has since August 17, 1991, until a final wetlands delineation manual is adopted.” 106 Stat. at 1324. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 22 of 32 18 But this language fails to overcome the strong presumption that the text of an appropriations bill does not remain effective decades into the future. As discussed above, for an appropriations provision to have lasting effect, Congress generally must use very explicit language “such as ‘to apply in all years hereafter,’” Martin, 961 F.2d at 274, or “for subsequent fiscal years,” Whatley, 447 F.3d at 819-20. The relevant part of the 1993 Appropriations Act contains no such verbiage. Furthermore, the phrase “will continue to use the [1987 Manual]” (106 Stat. at 1324) cannot be considered equivalent to a future-oriented term like “hereafter.” Although that phrase indicates that the Corps is to do something (i.e., use the 1987 Manual) going forward, unlike “hereafter,” it does not evince a clear intent for the Corps to be constrained to do that thing indefinitely, decades after the fiscal year ends. See Smithsfork Grazing Ass'n, 564 F.3d at 1215 (concluding that provision stating that a reduction in grazing allotments “shall be suspended” upon appeal did not indicate congressional intent for the provision to apply indefinitely). Moreover, the phrase “will continue to use the 1987 Manual” must also be read in the context of the sentence immediately preceding it (i.e., “None of the funds in this Act shall be used to identify or delineate any land as a ‘water of the United States’ under the [1989 Manual] or any subsequent manual. . .” (106 Stat. at 1324)), which explicitly ties the post-1987 Manual prohibition to the Corps’ use of funds during the 1993 fiscal year. See United States v. IBM, 892 F.2d at 1009 (concluding that a provision in an appropriations act was not intended to apply permanently where “the phrases ‘for the current fiscal year’ and ‘during the current fiscal year’ precede the pertinent provision in the same paragraph”). Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 23 of 32 19 It would be particularly inappropriate to interpret the relevant language from the 1993 Appropriations Act as evincing a clear congressional intent of permanence considering that, in Title II of the same Act, Congress explicitly barred a different agency from taking certain actions in future fiscal years, stating that the Bureau of Reclamation was “hereafter” barred from using funds appropriated “in this Act or in subsequent Energy and Water Development Appropriations Acts” in certain ways. 106 Stat. at 1330 (emphasis added). As the Second Circuit observed in similar circumstances, “when Congress wants to make explicit that a certain provision is to apply beyond the fiscal year to which the appropriation act applies, it knows how to do so.” Auburn Hous. Auth., 277 F.3d at 146 (concluding that a provision was not intended to apply permanently where it lacked “words of futurity” used in another provision in the same act). Congress did not do so in the portion of the 1993 Appropriations Act on which Plaintiff relies. As the Supreme Court long ago explained, Congress’ intent to make a provision in an appropriations bill permanent must be “expressed in the most clear and positive terms, and where the language admits of no other reasonable interpretation.” Minis, 40 U.S. at 445. The language from the 1992 and 1993 Appropriations Acts does not come close to meeting that high standard. Thus, the text from the 1992 and 1993 Appropriations Acts on which Plaintiff relies is no longer effective and does not bar the Corps from relying on documents other than the 1987 Manual when determining whether an area contains wetlands two decades later. II. Even if they still applied, the 1992 and 1993 appropriations riders do not bar the Corps from issuing or relying on a Supplement to its 1987 Manual. Even if cited portions of the 1992 and 1993 Appropriations Acts were still effective decades later, they do not, by their plain text, bar the Corps from relying on Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 24 of 32 20 guidance set forth in a supplement to the 1987 Manual (in addition to relying on the 1987 Manual itself) when making a jurisdictional determination. The 1992 Appropriations Act provides: “None of the funds in this Act shall be used to identify or delineate any land as a ‘water of the United States’ under the [1989 Manual] or any subsequent manual not adopted in accordance with the requirements for notice and public comment of the rule-making process of the Administrative Procedures Act.” 105 Stat. at 518. The 1993 Appropriations Act contains very similar language: the corresponding sentence differs from the text of the 1992 Act only in that Congress replaced the phrase “not adopted in accordance with the requirements for notice and public comment of the rule-making process of the Administrative Procedures Act” with the simpler phrase “adopted without notice and public comment.” 106 Stat. at 1324. Critically, in both provisions, the Corps is barred only from using the “funds [allotted] in this Act” to identify areas as wetlands under the 1989 Manual or a subsequent manual that did not go through notice and comment. The Corps certainly did not use funds appropriated to it in 1992 or 1993 to make the 2010 jurisdictional determination challenged here; those funds were long gone. Thus, the Corps did nothing inconsistent with the quoted language from the 1992 and 1993 Appropriations Acts. Furthermore, even if the Corps could somehow have used decades-old funding to complete the 2010 jurisdictional determination, it still would not have violated the appropriations language in question because the Corps did not rely on either the 1989 Manual or a “subsequent manual” when identifying wetlands on the Site; rather, it relied on a supplement to the 1987 Manual. Nothing in the text of the cited provisions of the Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 25 of 32 21 1992 and 1993 Acts speaks to whether or how the Corps may supplement the 1987 Manual (or supplement any subsequently-issued manual). Even if the Alaska Supplement were considered a “manual” for purposes of the Appropriations Acts, the Corps still would not be barred from relying on it, given that the Corps solicited and received public comments prior to finalizing the Supplement. See 106 Stat. at 1324 (stating that the Corps may not use funds to make delineations based on a manual that did not go through notice and public comment).5 Plaintiffs argue that the 1993 Act contemplated the adoption of “a single manual,” not “ten separate wetland delineations manuals.” Pl.’s Mot. at 16. But again, the text of the Act contains no such restriction.6 Even if in effect, decades-old provisions in an appropriations act should not be interpreted to prohibit more than what the text plainly states. As noted above, the 1993 Act contains an additional line of text that Petitioners claim bars the Corps from relying on the Alaska Supplement: “Furthermore, the Corps of Engineers will continue to use the Corps of Engineers 1987 Manual . . .until a final wetlands delineation manual is adopted.” 106 Stat. at 1324. For the reasons given in 5 While the 1992 Appropriations Act called for any subsequent manual to be subject to the notice and comment requirements of the APA, 105 Stat. at 518, in 1993 Congress omitted the reference to the APA, stating only that the Corps should not rely on a manual adopted “without notice and public comment,” 106 Stat. at 1324. To the extent these decades-old requirements still apply, the later-enacted text plainly controls. 6 Plaintiffs further argue that the regional supplements cannot be considered final manuals within the meaning of the 1992 and 1993 Appropriations Acts because they “do not set forth nationally applicable standards,” whereas the Corps’ regulatory definition of “wetlands” (33 C.F.R. § 328.3(c)(4)) sets forth a single national standard. Pl.’s Mot. at 17. This argument has no basis in logic or law. The Corps’ nationally-applicable regulations set forth basic wetlands criteria, and the Supplements—like the 1987 Manual itself—simply expand upon how those criteria should be applied in practice in different areas of the country. There is nothing illogical or legally inconsistent about the Corps’ decision to explain how certain areas may or may not fit the regulatory definition in light of regional differences. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 26 of 32 22 section I above, that decades-old language has no enduring effect. But again, even if it did, the Corps has not acted inconsistently with the text. The Corps undisputedly relied on the 1987 Manual when making the challenged jurisdictional determination, thereby fulfilling any obligation to “continue to use” that Manual until a new manual is adopted. See COE000197 (“We applied guidance in the 1987 Wetland Delineation Manual . . . to determine the presence of wetland . . . .”). And nothing in that provision prohibits the Corps from also simultaneously relying on supplements to the 1987 Manual. Indeed, it is common for agencies to supplement manuals and other guidance documents,7 and Congress should not be presumed to have intended to prohibit an agency from engaging in such normal processes without a clear statement to that effect. It is thus unreasonable to construe the text of the 1993 Appropriations Act as barring any supplementation of the 1987 Manual when the text says no such thing. Plaintiff argues that the Alaska Supplement impermissibly alters the text of the 1987 Manual because certain parts of the Supplement supersede and replace parts of the Manual. Pl.’s Mot. at 20-22. Of greatest relevance here, the Alaska Supplement takes a different approach to determining the “growing season” than the nationally applicable portions of the Manual. Plaintiff argues that the Manual would categorically bar the 7 For example, EPA supplemented its 1996 Soil Screening Guidance in 2002. At https://www.epa.gov/superfund/superfund-soil-screening-guidance. In 2014, the Bureau of Land Management supplemented its Royalties, Rates, and Records manual. At https://www.blm.gov/wo/st/en/info/regulations/Instruction_Memos_and_Bulletins/nation al_instruction/2014/IM_2014-156.html. And the Corps, working with other agencies, has issued regional implementation manuals to supplement its national manuals on sediment testing required under the CWA and Marine Protection, Research, and Sanctuaries Act, as well as supplemental guidance documents expanding on regional manuals. See, e.g., Portland Sediment Evaluation Team, Supplemental Guidance for the Portland District: Sampling and Analysis Plan Preparation under the 2009 Sediment Evaluation Framework for the Pacific Northwest (2011) at §1.1. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 27 of 32 23 identification of areas containing permafrost soils as wetlands, while the Supplement does not. See id. But again, nothing in the text of the 1993 Appropriations Act bars the Corps from revising or amending the 1987 Manual—whether in a document labeled as a “Supplement” or otherwise—and it is standard practice and good governance for agencies to revise and amend guidance as the underlying science develops. Indeed, it would be arguably arbitrary for the Corps to continue to apply a definition of “growing season” that the National Research Council has since opined is patently erroneous, particularly when applied in Alaska. See COE000187. In short, nothing in the 1992 or 1993 Appropriations Acts prohibited the Corps from supplementing, amending, or revising the 1987 Manual. Therefore, even if the relevant provisions of the Appropriations Acts remained in effect, the Corps’ jurisdictional determination and permit decision should be upheld. III. Even if the Corps were barred from relying on the Alaska Supplement, the Corps’ determination that the Site contains jurisdictional wetlands and the permit decision flowing from that determination should be upheld. Even if the Corps were barred from relying on the Alaska Supplement and compelled to apply the 1987 Manual alone, the final permit issued to Tin Cup by the Corps based on its 2010 determination that the Site contains wetlands subject to its jurisdiction under the CWA should not be set aside. First, the 1987 Manual provides that “[c]ertain wetlands types, under the extremes of normal circumstances, may not always meet all the wetland criteria defined in the manual,” and that “such wetland areas may warrant additional research to refine methods for their delineation.” Pl.’s Mot. Ex. 1 at 5. Thus, by its own terms, the 1987 Manual allows the Corps to look outside its bounds and consider alternative delineation methods when determining whether, in light of “normal circumstances” in a particular area (for Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 28 of 32 24 example, the potential endurance of frost for consecutive years in Alaska), the area should be classified as a wetland. Second, even if Plaintiffs were correct that, under the 1987 Manual, areas may not be classified as wetlands where they are underlain by soils affected by permafrost, it would not require a change in the permitting outcome. Contrary to the assumption underlying Plaintiffs’ arguments, the Corps did not find that the Site contained wetlands underlain by permafrost; to the contrary, the Corps stated in the memorandum supporting the jurisdictional determination that “no portion of the subject wetland are mapped as having soil types that contain permafrost.” COE0000721. The Corps instead characterized “the vast majority of the subject wetland” as “having hydric soils with seasonal frost,” and noted only that “seasonal frost in some of [those] areas may persist through the year in some years and possibly persist for a few consecutive years.” Id. The Corps characterized such conditions as a “semi-permanent frost,” rather than “permafrost.” Id. Thus, there is a fundamental flaw with the factual basis for Plaintiffs’ challenge: the Corps did not, in fact, conclude that any portion of the wetlands on the Site are underlain by “permafrost.” Thus, even if Plaintiffs were right that areas underlain by permafrost soils cannot, under the 1987 Manual, be categorized as wetlands, and therefore cannot in turn be considered a “water of the United States” within the Corps’ jurisdiction, that principle has no application here based on the record. Finally, the jurisdictional determination on which the Corps’ issuance of a final permit to Tin Cup was based is sound because it is undisputed that the Site contains at least some wetlands that are not underlain by permafrost soils, and that those wetlands fall within the Corps’ jurisdiction under the CWA. By Plaintiffs’ own admission, at least Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 29 of 32 25 150 wetland acres on the Site are not underlain by permafrost. Compare COE0000718 (noting that the map provided by Tin Cup’s own consultant shows 351 acres of wetlands on the Site) with Pl.’s Mot. at 1 (“Tin Cup contends that the Corps’ assertion of jurisdiction over some 200 acres of permafrost on Tin Cup’s property is not in accordance with law, and therefore should be set aside.”). Tin Cup does not argue that the Corps improperly relied on the Alaska Supplement in classifying those areas as wetlands, or that the Corps then improperly concluded that those wetlands are within its jurisdiction under the CWA because they are adjacent to, and have a significant nexus with, the Tanana River. See COE00711, COE000717-28 (explaining that the wetlands on the Site are adjacent to the river—and therefore jurisdictional under the applicable statutory and regulatory definitions of “waters of the United States”—because, inter alia, they are in reasonably close proximity to the river and are separated from it only by berms). Thus, even if some subset of the area identified by both Plaintiffs’ own expert and the Corps as “wetlands” did not qualify as such under the 1987 Manual, the conclusion set forth in the 2010 jurisdictional determination—that the Site contains wetlands subject to the Corps’ definition under CWA—remains fundamentally sound.8 CONCLUSION For these reasons, the United States respectfully requests that the Court grant its cross-motion for summary judgment and deny Plaintiffs’ motion for summary judgment. Respectfully submitted JOHN C. CRUDEN 8 For this reason, if the Court were to find that the Corps improperly relied on the Alaska Supplement in delineating the wetlands on the Site, the challenged permit decision should be remanded—not set aside—so that the Corps can further consider whether and to what extent some revision of the final permit is necessary. Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 30 of 32 26 Assistant Attorney General /s/ Amanda Shafer Berman Amanda Shafer Berman (DC Bar #497860) United States Department of Justice Environment and Natural Resources Division 600 D St. N.W., Suite 8000 Washington D.C. 20004 Telephone: 202-514-1950 Email: amanda.berman@usdoj.gov Counsel for Defendant the United States Army Corps of Engineers KAREN L. LOEFFLER United States Attorney /s/ Richard L. Pomeroy RICHARD L. POMEROY Assistant U. S. Attorney Dated: December 22, 2016 Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 31 of 32 27 CERTIFICATE OF SERVICE I HEREBY CERTIFY that, on December 22, 2016, I filed the foregoing CROSS- MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court electronically. Accordingly, it has been made available via ECF to counsel of record for Plaintiff. /s/Amanda Shafer Berman Amanda Shafer Berman Case 4:16-cv-00016-TMB Document 22 Filed 12/22/16 Page 32 of 32