ELR Citation: ELR 20782
No(s). A4-91-218 (D.N.D. Jan 20, 1993)

The court holds that it lacks jurisdiction to review a U.S. Army Corps of Engineers' (Corps') cease and desist order prohibiting a county water resource board from depositing spoil material in a wetland as a part of a flood control project, because the Board seeks only declaratory judgment of its liability for violations of the Federal Water Pollution Control Act (FWPCA). The court first observes that it may only review a case if there has been a final agency action that pertains to the relief requested. Thus, in order for the court to have jurisdiction over the Board's request for declaratory judgment, the Corps must have issued a final decision regarding whether or not the Board was responsible for depositing the spoil material. The court holds that although the Corps issued a §404 permit to the Board for the project, which constituted final agency action regarding the project, the Board did not appeal the permit, so that, reviewable, agency action was not before the court. Moreover, Congress intended to preclude judicial review of compliance orders issued under the FWPCA prior to enforcement action or imposition of penalties. The Corps has not brought any enforcement action or assessed any penalties after issuing the cease and desist order.

Counsel for Plaintiff
Murray G. Sagsveen
Zuger, Kirmis, Bolinske & Smith
Provident Life Bldg., 316 N. 5th St., P.O. Box 1695
Bismarck ND 58502
(701) 223-2711

Counsel for Defendant
Cameron W. Hayden, Ass't U.S. Attorney
U.S. Attorney's Office
P.O. Box 699, 452 U.S. Post Office & CtHse., 3d & Rosser Ave.
Bismarck ND 58502
(701) 250-4396