one seven dash one one five four marquette county road commission versus e p a at all oral argument fifteen minutes per side mr miller for the under the administrative procedure act but the lower court was wrong this court should reverse the lower court's decision to dismiss the complaint and remand for the government to answer the complaint why was the lower court wrong with section seven zero four of the ministry of procedure act tells us so seven zero four says that final it is the action for which no other adequate remedy exists is reviewable in court and that's what we have here this court in barrie versus department of labor said last summer had given for vetoing the permit by law it shrink the permit process transferred to the corps and the corps demanded this is an important fact it demanded a new permit it did not say we're now going to review the ongoing permit process that the  undergoing instead it said we want you to submit a new permit and this new permit was going to have a whole number of factors a host of factors that were different than what the d e q looked at eight we know that the e p a and i think the people who give you very quickly the reasons why that permit were different for example the chords as i said the core demanded a new application the to apply for the permit at the core there are going to be different definition terms that applied the process would require i think this is probably the most significant difference the the market kind of role commission is going to have to comply with nepa that's a significant difference from the application if you've gone through with the d e q there are different public interest factors in mitigation ratios and the federal process would require a tribal consultation and lastly there would be a new interagency public in agency comment period so these are all significant differences between the d e q permit that had been vetoed and was done it was gone it would never be resurrected because the e p a vetoed it we know from friends of crystal river that a p were obligations and legal consequences flow and i would suggest that we have all three of those things is the agency do we have a final action which is me did the vic do the veto impose legal obligations yes the county now had to apply for the army corps of engineers permit or it would just have to not build the road which is effectively what happened it was locked in to what you keep saying that the e p a vetoed the the clean water act tells us we have to do in order to issue a permit we think this is proper we want to issue the permit e p a had already once nixed a permit that the d e q was ready to issue and now they were doing it again the reasons they gave suggesting that we have to take that as you present it why isn't that a legal conclusion you want to that's a legal conclusion but what we know is from the veto from the determination of the e p a made that they were they were going to object to the q permit they gave reasons and those reasons were factually outside of its powers that would sort of lead into the second argument but they were getting into decisions that congress had vested in the state  part of the clean water act certainly part of the mission of congress that up was for cooperative federalism this it would make a mockery of the process or a farce as this court said in ford motor company if the e p a could just sit in as and veto or in this case reject any decision the state wants to make as to what's best for the state's waters and here the state had made that decision had followed the law but the e p a had said no you're not going to do that the d e q and the road commission went back to the e p a in december of twenty twelve and said what can we do to fix this and the e p a said we did not give them any response that the e p a told the royal commission go talk to the he throws his hands up the thirty days expires and we see in january twenty thirteen and e p a officials saying all's well that ends well there's really that's what the e p a saw here when we look talk about the facts i think this case is mostly about the law but when we talk about the facts the facts are embarrassing for the e p a the from the big from the get go as the brief sets out and as the complaint set out the e p a and the army corps engineers set out to deny this permit to build this road that was good for the people of the upper peninsula of michigan and so we see in general twenty thirteen the agency thinks this is over and while i think it's over because the d e q permit is done it can never be brought back if we were to go forward with the core the government going to take the position that no  instead it's a continuing process number one it's not continuing because it's a different climate but number two like the compliance order in sakit you can't go back and review the reasons that were given for denying the d e q permit for vetoing e u permit we're going to have a new permit with the core of the corps doesn't issue the permit no question the road commission can appeal that you're under your reasoning it's seems to me that you would be saying that what you're really objecting to is the the set up that says if the e p a doesn't within the time frame approve it it goes to the core and the under your line of reasoning that every time that happens that would just like with any compliance order the facts of sakit for example were particularly egregious but the supreme court didn't focus on the facts because it was a question of law every compliance order going forward after sackett because of the project pragmatic approach the courts are supposed to take to section nothing yes it is then we get to hawks the corps of engineers comes in and says this process is ongoing yes we gave a j d an affirmative jurisdictional determination that says they have to apply for a permit but the process ongoing and after they apply for the permit if we deny they can then appeal the question as to whether the property ever had federal weapons in the first place and the supreme court said again unanimously eight to nothing known until the j d is final agency action to go forward their peat farming their peat mining and and so that was the legal consequence they couldn't do that their rights were fixed similarly here if the e p a had properly approved the permit then we'd already have this road in the upper peninsula of michigan but they didn't so the flipside of it is when they veto it just like in hawke's that's final agency action and we can question why they vetoed that permit why would congress have set up this process to only end up saying that the e p a can stall can force you to spend as we know from sacked me from repon upwards of two hundred seventy thousand dollars to secure that core permit another two hundred seventy thousand dollars we know from the complaint upwards of half a million dollars which is what the experts said for market county it would cost it's going to take years again as we know from our panos why would congress have set at the end of the permian process that they had to go through to see if they could ever fill their land and build their home and justice kennedy and concurrent and then a no you don't go to a separate agency to then circle back and challenge with your original agency did and then the course in the majority opinion they said of course this is consummated final action because the agencies work is done on the fact that there was a continuing process administratively didn't mean the compliance order was not appealable then because there were consequences there they were looking at fines and here there are likewise consequences we can't build the road if they build a road without having secured the permit for example of it or just got the d q to give you the permit and then under state law then they're looking as to the decision of the a p a and then this edition of the core does it does it further judicial economy to allow an appeal even when the process is only half way  statute tells us the statute said actually it has a two set step process and you're at the one step the e p a step yet you also have the core process and what you want to do is say that you have a right to appeal halfway through even though the ultimate decision whether that road can be built or not hasn't been made because the court could approve it do you think congress that was their intent yes i think your h in hawke's company the agency said this is a continuing process they might have gotten their permit to the j d was a step in the process according to the corps who i know is here today but the supreme court said it's nothing no no yes it's a step in that particular process that's been designed by the g d as a final decision as to whether federal weapons similarly here the final decision as to whether what congress is designed for the state to issue whether that was rightly veto in hawke's company after it was really objections wait you are i think that's a distinction without a difference because effectively here the e p a has twice said no d e q this permit you're ready to issue is not good enough for us and the reasons the e p a was giving were not within its powers to give then the e p a knew it was taking advantage of the statute to say well now it's going to bounce of the corps and what the d e q was ready to do is over so as a question of futility factually i think as the complaint sets out they were never going to get their permit and they shouldn't have to go through a sham through a farce exercise with the army corps of engineers only to be told a couple of years later after they wasted application process there was a meeting among the parties not a market county commission they were not invited but the government said we're not going to approve this road project this was a well known proposed road project from a mind to a mill and the  good morning my name is ellen durkee i represent the environmental protection agency in the corps of engineers in the district court correctly held that the e p a directions are not finally agency action reviewable under the administrative procedure act when it is here the state does not actually deny or issue a permit and the question of permit issuance has been left unanswered congress has congress deliberately process so that when as it happened here the the state does not make a decision within the statutory timeframe congress provided that does not render it a final decision denied by the objection and therefore they had to apply for a new permit to the course so that the final agency action is used as to the e p a permit and the other ones a different p look at this as one permit well this is one permit because what they applied for in relevant part is a section four zero four dredge and fill you know permanent there is not something there there can be a state permit for state law purposes but for section four a for purposes there's only one permit and what you hear of though that the corps was demanding a whole new application i'd like to clarify what the corps asked them to do is to identify what the proposal was at that point in this process the permit application was revised multiple times there were three revisions prior to the hearing there were then more revisions than you know i necessarily can count after that and so what the corps was saying to them is we're not sure what your proposal is at this point please you know give us some materials here and they took the position that they would not give them any materials that the core should simply know what the proposal is at that point we keep in mind that i mean what they've so it's not a new application it they refused to even give the core all of the materials that they'd already submitted to the p a is that what you're saying correct that the and they've and they also did not identify which of those various revisions that they wanted you know that they were now coming forward with me after the e p a objections and december of two thousand and twelve they had not they did then try to talk to the state about conditions that would resolve that the state was unwilling or unable to to complete that process but they they were then in a position that they could have gone to the core with the deal with those revisions as well i mean that's simply what happened is that they decided to abandon the process you can't have a permit process where you don't have an applicant that wants to pursue it anymore and that's essentially what happened here this is the core stands ready today if they will identify what the proposal that and what they what the the documents that they want the core to consider as their application the core would process that today there was so it this idea that it's somehow new because they actually have to it's really a trivial difference it's only new in the sense that you have to give them the papers that you want them to consider and again was part of their application you could give them the what you'd have are their proposal in june their proposal in july and their proposal october their proposal in november their purpose will and you know different twice in december so what the core needs i mean i you know it certainly would not have been difficult for them just to provide those papers and so making the court to find them but but really what's need is they have to say to the court identify for the core what is the proposal i don't know what the cost would be what they have used is a figure that was mentioned of a secondary source as to what an average cost is so i would i mean common sense would tell you have since they've done you know all this analysis already is that they were it wouldn't be like starting a ground at the you know with a permit that you know it's at the first stage and i you know the cost well i mean that's not that that shouldn't be the decision deciding factor here well it would be if there weren't any money but that's beside the point i suppose the commission is also indicated as i understand the argument that the corps was saying that there would have to be some entirely new requirements beyond what the e p a was requiring do you say that that is not correct well what what they found a den of fire this is what the you know was core was saying to them this is what they're identifying by comparing you know the state of the regulations but the fact is that they're identifying are procedural aspects really being the substantive criteria is not different and what would mr miller just mention you said well the definitional terms under the michigan law and under the core are different but they can't be different in terms of the federal jurisdiction the state when it is standing and the rule of having been delegated permit in authority under the clean water act has to use the clean water act jurisdictional provisions for the clean water act aspect a state is always free to impose additional requirements and they may have a definition that encompasses other wetlands for state law purposes a but that's not the clean water act definition that they can use they mention that there are procedural factors such as consultations these are things that you know federal agency the original permit in authority has to comply with but those are procedural nepa is a procedural statute and by the way the state has a comparable comparable statute so the difference is that they're trying to highlight they also mentioned in their briefing there there's a different time frame but these are not substantive differences between you know the state and the core process i mean they're both in both instances they're supposed to be applying the section for one to four or four but you want guidelines and determining whether those have been satisfied i'd like to speak to this issue of this continued use of the word veto because i think that that is seems to be the critical characterization for the plaintiffs argument here but a veto means that you cannot get a permit in the end for a for itself there's a distinction between what happens and for a for jay with e p a objections and a true veto and you know  the the in this case the e p a objection is is gives a state opportunity to take action and then when the state as it did here there's an impasse because they don't take an action within stature it toward time that it simply shifts the permit in authority that is not a veto the the core may look at this and say we think it's satisfactory e p a you know they may come up with you know the provisions that they need to satisfy that the objections and which case they could still get a permit and that's what they simply did was stop the process and decide not to continue now true veto like in the vernacular sense and for a for c it doesn't use the word veto but it's always referred to that in the case law and generally and that is e p a does have the authority under for a four seed to decide that particular areas may not be used as a disposal site in other words there are particular areas that you cannot place phil han and that becomes you know binding on the court but that's not what's happening here and there's no been no you know decision making under four or four c instead it is simply looking at a profit permit evaluation process that congress designed to continue and the last thing i'd like to say is that have held that e p a age objections under the amended section four to that follows the same sort of process is for ford jr not reviewable final agency action because there has not yet been an answer on the permanent the fact that it goes to e p a the good the original permanent thor's e p a or the corps really neither here nor there the question is has there been a decision on the permit there has not and therefore this through regulation the e p a in the court had set up a process where you landowners could get a jurisdictional during jurisdictional determination and it was a you know it was a very intensive process and they had  determination they had a final determination it was not contested that it met the first bennett you know consummation factor the question whether it had legal consequences and she element of that was that the supreme court interpreted the memorandum of understanding as binding the court e p a to a negative jurisdictional determination and that was really the cornerstone now we don't have anything what what i think the first difference is here in this case there is not is and contested that they do need a forum for permit it's uncontested that there are jurisdictional wetlands that would be filled in the end of this proposal so we don't have the sort of separation of is the jurisdiction of the clean water act meaning do you even need a permit from the permit process itself here we're talking about the process that they initiated for a permit and we have the and we still don't have an answer on that permit other words you don't have sort of these different  processes and the other thing is that the negative there yeah there really isn't this car per boll by nine hundred impact that that hawks had so i think they're trying to sort of fit pigeon hole everything into hearts but this really is a different statutory scheme and therefore for jay then what was the court was looking at and hawks there's no right to a j d that's just something the agency gives you the opportunity to ask for under the regulations here on the other hand congress has designed a statute that sets it up so that states can take control of the permit in process that's what the clean water act says so unlike the j d where the agencies the corps is set up something that you can do to pursue find out if you need to get a permit here congress set this up the states are supposed to have control but the  well too bad we don't like what you're doing we're going to take it away from you if congress had intended that the state would have complete control they would have said that and they would not have put the e p a the corps into the process your honor the certainly congress gave them limited authority as as court said and ford motor company but they don't have carte blanche and that's really our argument here that they've gone way beyond the powers that congress gave them in why is it worse than hawks a number one you have a right to get that permit from the state that isn't going to be vetoed by the e p a for arbitrary and capricious reasons which we say is what happened here too you'll never get to review the objections to keep the deed to permit so the state department carmel calling it wants to give you that could never if they granted the permit the landowner would have nowhere to go because the e p a had made it clear it was not going to sign off on it so they deny it then transfers they threw their hands up because the reasons the e p a gave were  you said we can't ever we want to give you this permanent why would they deny the permit that they wanted to give but you're saying i mean would there have been of appeal in th well judge why do you have any further questions at this point thank you thank you counsel the case will be submitted thank you one quick call the next case