i will be dividing my argument up with a five minute month charge firm in dallas texas on behalf of the plaintiff appellant here on mountain club appealing from judge bell's decision in the western district of michigan to deny the preliminary injunction we were seeking in connection with the corps a ction cases brought under federal question jurisdiction of the administrators procedures act were complaining of the corps failure to act and that's included in the definitional section at five five one point  three the court case really opens with the issue of whether or not the corps has a mandatory duty under the both clean water act in the rivers and harbors act to require parties to submit to the regulatory process and that mandatory duty with respect to the rivers and harbors act is found in the plain on ambiguous language of section ten and that section is divided into three clauses and each one deals with obstructions to the navigable capacity of navigable rivers under the rivers and harbors act each one of those clauses uses the term in e any obstruction any of the waters prohibited first clause second clause unlawful to build or commence the building of any other structures in any navigable water third clause shall not be liable lawful to excavate filler in any other way change the course of any navigable water under seventh grade geometry we all know any means every every means all that language of the statute establishes a mandatory duty that the corps has to address any structure any activity whether it's in the now the water or not that may affect its navigable capacity now that teaching ha ha how do they do they do that by when they find there's two ways number one when they find out there's a project that may do that they have that effect they then have to contact that group and say are you getting a permit there's a permit in process one of the rivers and harbors act in the clean water act administered by the department of the army that to the corps the corps then has the duty to determine whether that project affects the navigable water and what we find from the well in this instance it became known to the corps according to the of the us army corps mr connick in two thousand and five they set down and had a meeting with the p a in his declaration i apologize where they discussed this project and they they determined in the affidavit tells us this that there wasn't that was their conclusion conics mr conics affidavit that pay i'm sorry at paragraph sixteen he concludes it remains the position of the corps of engineers that the salmon trout river adjacent to the twenty one we're that's exactly right and in that context they claim they had no duty to do anything and we're saying they did now let me address that briefly with respect to the mandatory duty and there are several cases also that address it the rio grande case one hundred fourteen years ago said that any obstruction to navigate capacity anything where ever done or however done within the u s is part of the prohibition in the republic steel case justice douglas said we can only conclude congress planned to ban any type of obstruction so both of those we would suggest to the court shows that it was a mandatory duty and it's non and i don't know who else would have because it went nowhere from there and so we would suggest also your honor the corazon regulations a stablished the duty involved cited in our brief briefly mention thirty three c f r three twenty two point three c two congress has delegated to the secretary of the army the duty to authorize or prohibits certain wark or sir are structures in navigable waters of the us that's their own regulation there several similar to that and of course in the case of kirkland masonry the proposition is stated that  agency is required to follow its own regulations and its own regulations contemplate that duty they express that duty and even if it was a mandatory duty it's a duty they took up in making a jurisdictional determination that the soundman trout river didn't fall when the rivers and harbo they go to them if they know about it and they say you need a permit that's not enforcement that's not penalize in that that is submitting them to the regulatory process and that's how it works believe they need well that just depends on their discussions with the corps in my history if the court tells you need a permit then you go get a permit the court has them think they need a permit well then that's fine but if they're wrong in that jurisdictional determination that no permit is needed that's actionable and that's in part what we're suing about here and i might add that language will under what but first under the administrative procedures act because it's the course failure to act when they should have aggrieved person to know the the basis for their jurisdiction and the underlying jurisdiction is the rivers and harbors act section ten dealing with structures affecting navigable waters a judge decided it wasn't novel right and that's another that i would like to address momentarily it's also one of the clean water act i might add not just rivers and harbors but clean water act now as to the judge's decision he made a couple of conclusions and i'll be brief in mentioning them but he said first we gave him some evidence show there was recreational activity on the salmon trout river which under the regs can be considered for navigation in logging historically that's all found in thirty three c f r three twenty nine that section those sections and under that he concluded that number one you didn't tell me where the recreational activity is occurring but that's clear in the affidavit of dr o'boyle very it's undisputed that that activity begins approximately one mile from the mine and continues eight point seven miles complicated but all of the experts in this case agree that the excavation associated with the mine under well i want to your thing ok and the law being what about bob yes well the way it works and i might add when you look at the conic affidavit which is the only evidence the government put in he addresses all of that he concludes the river was navigable two miles upstream from lake superior and when you look at paragraph twelve his declaration you see that he did that based on the wrong criteria he did it by saying this is where what's called the ordinary high water mark of lake superior in it's we're not talking about the ordinary high water mark of lake superior we're talking about the ordinary high water mark of the salmon trout river that respect your honor first off testimony by rio ten toes own expert and i'll get the exact side when i get back up said that there was evidence of logging on the mine  you know it was it happened on the mine site logging on to have happened on the side that were interested in what part of the river was well it would have to be from the that point to the location of the mill which is at lake superior and the only way in those days to get down to that point was by river lives if you know more about this to you than we do but i'm not sure that i think you might be able to conclude that that is what you know that too i am not here we can claim that based on what's in the record well i appreciate that and then i'll stop one other point that connection these waters these wetlands that are being drawn down are what are called the source or head waters of this river and there is no way no way you can draw down the source and not effect the whole river the judge found because they were using some water they were dumping back in the river that that had some sort of water balance the start right under section ten that's a separate violation each time you're changing the capacity of a river you have to have a permit if you affect the  navigable area we demonstrated there was recreational activity starting at one mile from the site the experts in the case as one of their experts mr workman said the water from the source of the headwaters goes all the way to lake superior well when you don't have that water any longer you can never replace it you can put some more water in but if you hadn't taken that source water out that water would still be in the river and so there is an effect on the navigable capacity it goes all the way to and harbors that does not allow for private cause of action and so the only way to implement it is to bring it under the a p a and in the same manner we said the corps had a duty under the clean water act established by the eva yeah and hansen cases and action either a final agency action or an action unlawfully withheld your arm and club has not identified such a discrete action in this case and as a result it's unlikely to succeed on the merits of its claims because it has not stated a claim under the a p a first turning to section seven of seven of six one which provides a cause of action to challenge agency action on lawfully withheld here the corps has not failed to complete a mandatory duty which is a discrete action legally required the club is claiming that the corps has violated the clean water act in rivers and harbors act by failing to require can a cot to submit to permanent procedures but nothing in the statutes or regulations create such an obligation on behalf of the corps indeed neither has even a mechanism by which the court could compel the a private party to submit a permit application of that party chose not to do so you have an unfortunate right and an a and the court could bring an enforcement action against a private party that's in violation of either the clean water act or the rivers and harbors act but that would that would subject the defendant and not case to penalties it wouldn't notice it wouldn't be a section to make them learn elegy there are a lot of things in immigration cases that are unreviewable but in a lot of cases but the determination that there's no that is when the court decides we i don't have the authority to do this in all of those circumstances we then will review it so we won't we won't review the  decision but we will review the determination that there's no jurisdiction or authority to do it so why isn't the same thing here if the basis for their decision is not that they're exercising their discretion we don't want to force in this that the other thing but that this is not with our within our jurisdiction why should we not review that determination your honor assuming that those are a p a cases presumably in those cases the plaintiff has identified a final agency action that it believes is a terrorist fictional determination that is review of all by the court on the basis of arbitron capricious review that hasn't happened here we the plaintiffs have never identified what they believe a final agency leaving aside the the point which i think is an important one that they were required to raise that in their complaint if that was the argument they were making leaving that aside there is no final agency action here the corps has simply not done anything and had it just i mean certainly latches on the statute of limitation would apply to any sort of challenge to a final agency action on a negative jurisdictional determination you know here there's a long history a thing if this were that if this two thousand that decision were a family agency action would be the normal limitations period there's a six year statute of limitations under did ministry of procedure act and you know that that would be something that we would have to look at as to whether or not there was there was some reason to stay the statute of limitations or for not addressing that two thousand and five phone call in no way could that be characterized as a final agency action i mean it is not in and out accepting i just want to be very clear i got it clear on that subject you know and really why there is why there is no final agency action and why one shouldn't be found the only notice that the quare had regarding this project was that two thousand and five phone call with other federal agencies in which the regulatory staff simply gave an opinion to the other federal agencies the german club has never gone to the core asked them to do a jurisdictional determination kennicott has never come to the core and asked whether or not they needed a permit and i mean i think that something that's really critical that i'd like to correct from the appellant's argument there is no statement from the court to kennicott saying that that no permanence required because kennicott never asked that question so you know all that's happened the two thousand and five phone call and then this and this lawsuit there really hasn't been an opportunity for the court to express its final opinions on the activities at issue here  in addition you know i just like to point out that the remedy that the opponents are seeking here which is you know an order from the court that would require the court to go to kind of hot and and demand a permit first of all there's no provision for that action in the law or the regulations and second of all it wouldn't redress their claims because can a cot there would be no obligation for  kennicott to comply with such a request they're not required to to submit a permit application any party that wishes to risk it is can go ahead and you know in the end they may be subject to an important proceeding and  those penalties are severe and particularly under the clean water act consult and criminal penalties and in addition to significant monetary penalties but if if a private party wishes to go that route i suppose there's a possibility that that could be reviewable i don't you know that's not the case that we have here and i hesitate to speculate too much on that but you know that that's a possibility what i act you know i think that that that might possibly give rise to review ability by a federal court but you know bearing in mind that this is the federal protection of the federal interest on waters of the united states and it's a very particular lie the rivers and harbors act for tax a federal interest in ensuring commerce among the several states and you know it is it uniquely federal interest and as a result congress chose not to provide a mechanism for citizen enforcement suits whether or not a remedy under the a p a you know might exist for a wholesale abdication individual and small potential infractions i mean it's quite clear that congress didn't did not intend for private parties to be able to bring these types of claims and under the chaney's supreme court of make clear that you every technical violation of a statute absent clear and unambiguous evidence that that is what congress intended if there is myth that there's evidence that there was logging the corps has not curiously is that the practice that you just sit around and you could see something going on outside the window but if nobody else or something you just forget the cork in it certainly take action on its own if it perceives that there's a violation  it wishes to bring in enforcement action it certainly can and does take action however in these types of situations you know where it's not clear that there is a violation is of you know in practice what often happens is that the affected parties will bring a of a purported violation to the attention of the corps and nobody will bring a purported determination though i'm really confused so there is a provision that says that there's regulatory guidance not not regulations but i guidance so there's buttons that if an effective is there there's a mechanism for them yes there is is there just finding a citation reggaeton regulatory guidance letter number zero eight dash there zero two you know i don't believe that any court has ever addressed the question of whether negative jurisdictional determinations are reviewable under the a p a but you know certainly the cases cited here show many in instances in which courts have reviewed s clearly erroneous for the denial abuse of discretion and because i'm not going to have time obviously to go through all of it i do want to stress that we don't believe that that here on mountain club can succeed under any of the factors for the reasons discussed by the district court and that beyond that the core e p a issue that we've been discussing that i'll discuss a little bit more there are myriad other reasons on the merits that there are six claims can succeed before i forget i wan ask a question that was asked by judge gibson's a judge gibbons and judge white about logging and i do want to make clear since i am pretty familiar with this underlying record that we've been dealing with litigation for the past seven years in state court that there is no evidence in this record or anywhere else in the historical record of floating logs for commercial purposes on the headwaters of the same interest river and having worked with historians on this there are absolutely reasons or that you may not just even if you're logging in that area and there is absolutely evidence of logging activity in the on the land in that area over the past hundred twenty years or so but there are many reasons that you might transport it downstream especially if the waters are better  by by horse and carriage at one point by rail depending on what time you're talking about there are plenty of reasons to do that so you cannot just be  presented i would like to go back to the issue that you were addressing with mr myth and i think with mr addison has come far afield from where he started when he filed this case and when he was dealing with it in the district court he is and i w to the alleged belief that he seeks under count one and count two as well as paragraph forty of his complaint where he clearly is not talking about a failure to assert jurisdiction he is talking about a failure of the army corps of count want to count two in terms of the belief that the club is seeking and the reason that they're alleging specifically about permits is because if you're a mountain club ran in we would say of the twelfth hour not the eleventh hour after years and years of litigation in sta courts and all of a sudden said this underground mining activity which by the way has been going on for the last eight months as of may two thousand and twelve when they filed their complaint we need to stop this so you can get these permits the corps needs to force you cut to do that and then you need to engage in nepa review and h p a review e s a review of these more procedural reviews before you can go forward with your go underground activity so part but the primary reason as i understand it that o i think miss myth is correct absolutely correct that there is no mandatory duty to require somebody to get a permit kennicott has no duty as a prospective project proponent to submit an application if we don't do so we do so we do that at our own risk and the court can enforce against us or we can choose not to and if they don't the club can bring citizen suit under the clean water act and they would have to give notice and the importance of that notice is is evident here because the court had no idea before this lawsuit was filed that the club apparently had a problem with the behavior i see my time is up so unless the court has any questions does raise the issue of latches has been taken up numerous times by this court we refer it to the elvis presley enterprises case nine thirty six federal second it eight ninety four as well as other citations in that case it simply says we have no duty we have no duty they have a duty to get a permit before they construct under a river or before they destroy wetlands or waters of the united states and the clean water act we don't know anything about the time they met or the jurisdictional determination that was made by mr connick until we get the affidavit in this case now the court ask about this in foresman issue everyone talks about heckler we would refer the court respectfully to four seventy u at eight thirty three no four there it's taken up in the court hechler court says we do not have and they're talking about enforcement and hechler we do not have in this case a position by the agency to institute proceedings or of sorry on a refusal by the agency to institute proceedings based solely on belief that it lacks jurisdiction that is exactly what mr conic says in paragraph sixteen the because of their analysis it does not fall within the core section ten jurisdiction what about this procedure to ask them to evaluate their jurisdiction we have no duty to do that and that's a guidance document that is quite frankly i do this every where and i've never heard of that document but we have no duty to go to the core the court has the duty and i might refer the court to a couple of other cases that is i mean what we were too late they what are you know you mentioned eight months is not too light today why would it have been to light some much earlier point i mean you could have done that simultaneously with  things at once but we did this one well and that was kind of the right question that went into the practicalities rather than the resolution of the guy and then last just a couple of other points on the core of the clean water act they have a mandatory duty established by the hanssen case in the four circuit eight fifty nine federal second three thirteen three sixteen which says the corps has a non discretionary duty to regulate dredge or fill material and to fulfill that duty it must make reasoned wetlands determinations the corps has a mandatory duty to assessed the relevant facts construed the applicable statutes and regulations and properly applied a lot of those facts that's the duty under the clean water act turning to it briefly with a minute to go the clean water act prevents excavation under a wetland that destroys it a wetland is a water of the united states the judge got into the issue of whether there was a connection with the ground water all of the evidence in the case shows there's a connection with the groundwater but there doesn't even have to be because by excavating under the under the water it's regulated by harming connection between the ground water and the surface air water and that's unsupported by any evidence all the evidence shows this river is groundwater fed it's impossible to draw from the river to the mine through the ground water the fact that you have water coming into the mine demonstrates it's in communication to other points and i'll stop you mentioned the remedy against rio tinto the remedy falls under the all writs act the court has the power to enjoin them and that's y the court's decision once again that he concluded that by using water from the temporary infiltration system and dumping that in somehow balances this out is a is  erroneous finding that's not supported by the evidence and it's not supported by science when you dump in the additional water you change the capacity of the river again that violates section ten just as when you drew down the water it affects it since there was recreational activity one mile from the river and several experts including their own said this water will make it all the way to lake superior it affected the