PRECON DEVELOPMENT CORPORATION INC v. UNITED STATES ARMY CORPS OF ENGINEERS (2025)

MEMORANDUM ORDER

This matter comes before the court on Plaintiff Precon Development Corporation's Motion for Relief from a Judgment (“Motion”). ECF No. 120. Plaintiff seeks to vacate the court's Judgment issued more than a decade ago. Id. at 10. Plaintiff's Motion was filed on September 13, 2024, pursuant to Federal Rule of Civil Procedure 60(b)(5). Id. at 1. For the reasons explained below, Plaintiff's Motion is DISMISSED as MOOT.

I. Background 1

On September 18, 2008, Plaintiff Precon Development Corporation (“Plaintiff”) filed a Complaint in this court against Defendant United States Army Corps of Engineers (“Defendant”), seeking a “Declaratory Judgment finding that the Wetlands on [Plaintiff's Edinburgh] Property [were] not ‘waters of the United States’ and [were] not subject to federal jurisdiction pursuant to the Clean Water Act.” ECF No. 1 at 12-13. A series of decisions followed, culminating in a remand to Defendant. ECF Nos. 54 (Report and Recommendation), 56 (Final Order), 62 (Appellate Opinion), 66 (Order Remanding to Defendant). Upon remand, Defendant issued a new approved jurisdictional determination on July 9, 2012, which reasserted Defendant's jurisdiction over Plaintiff's Edinburgh Property. See ECF No. 76 at 2.

The case was reopened on March 22, 2013, following Defendant's July 9, 2012 approved jurisdictional determination. Id. Plaintiff and Defendant filed cross motions for summary judgment on March 28, 2013 and April 22, 2013, respectively. ECF Nos. 77, 91. The matter was referred to Magistrate Judge Tommy E. Miller, who issued a Report and Recommendation (“R&R”) on July 25, 2013. ECF No. 100. On November 18, 2013, the court entered an Opinion and Final Order, adopting and approving the Magistrate Judge's R&R in full. ECF No. 108. In doing so, the court found the administrative record supported Defendant's determination that the wetlands on Plaintiff's Edinburgh Property had “a significant nexus to the Northwest River” and were, therefore, waters of the United States over which Defendant had jurisdiction. Id. at 5. As such, the court denied Plaintiff's Motion for Summary Judgment, and granted Defendant's Motion for Summary Judgment. Id. at 13. On March 10, 2015, the Fourth Circuit affirmed. ECF No. 115. On May 8, 2015, the Fourth Circuit denied a petition for rehearing en banc, ECF No. 118, and the Mandate issued on May 18, 2015, ECF No. 119.

On September 13, 2024, more than a decade after Defendant's approved jurisdictional determination and this court's decision were rendered, and nearly ten years after the Fourth Circuit affirmed, Plaintiff brought the instant Motion seeking vacatur. ECF No. 120 at 10. Plaintiff asks the court to find that Defendant's jurisdiction over these wetlands, as determined in 2013, is “not equitable” pursuant to the Supreme Court's recent decision in Sackett v. Env't Prot. Agency, 598 U.S. 651, 143 S.Ct. 1322, 215 L.Ed.2d 579 (2023). Id. On September 27, 2024, Defendant filed an Opposition, arguing that Plaintiff's request for relief is moot, as the “underlying Corps approved jurisdictional determination expired in 2017.” ECF No. 125 at 1-2. Plaintiff filed a Reply on October 3, 2024. ECF No. 126.²

While Plaintiff's instant Motion seeking vacatur was pending, Plaintiff filed a Motion for Leave to File a Supplemental Brief on March 13, 2025. ECF No. 131. Defendant filed an Opposition and Exhibits on March 27, 2025 and March 28, 2025, respectively. ECF Nos. 132, 133. On April 7, 2025, the court granted Plaintiff's Motion for Leave to File a Supplemental Brief, ECF No. 134, and Plaintiffs’ Brief was filed that same day, ECF No. 135. The court now addresses the current Motion for Relief from a Judgment.

II. Clean Water Act 3

Congress enacted the Clean Water Act to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). Under the Clean Water Act, Defendant “may issue permits ․ for the discharge of dredged or fill material into the navigable waters at specified disposal sites.” 33 U.S.C. § 1344 (a), (d). Both Defendant and the Environmental Protection Agency (“EPA”) “are responsible for the issuance of permits under the [Clean Water Act] and enforcement of their terms.” Nat'l Wildlife Fed'n v. Hanson, 859 F.2d 313, 315 (4th Cir. 1988). Defendant's permit decisions “must be based on EPA guidelines.” Id.

“Waters of the United States” and “wetlands” are defined in 33 C.F.R. § 328.3(a), (c). Defendant regulates certain activities occurring in the waters of the United States by issuing “formal determinations concerning the applicability of the Clean Water Act.” 33 C.F.R. § 320.1(a)(6). A formal determination is a “jurisdictional determination,” which is a written “determination [issued by Defendant] that a wetland and/or waterbody is subject to regulatory jurisdiction under Section 404 of the Clean Water Act ․” 33 C.F.R. § 331.2. Jurisdictional determinations may be “preliminary” or “approved.” Id. “An ‘approved’ [jurisdictional determination] is considered an administratively appealable ‘final agency action,’ ․ and is binding for five years on both [Defendant] and the [EPA] ․” U.S. Army Corps of Eng'rs v. Hawkes Co., 578 U.S. 590, 590, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016) (citing 33 CFR §§ 320.1(a)(6), 331.2).

III. Legal Standards

The court's jurisdiction is limited to “cases and controversies” under Article III. Lujan v. Defs. of Wildlife, 504 U.S. 555, 577, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citation omitted). Courts enforce the case-or-controversy requirement through several justiciability doctrines, including standing, ripeness, mootness, the political question doctrine, and the prohibition on advisory opinions. See, e.g., DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006); United States v. McClure, 241 F. App'x 105, 107 (4th Cir. 2007). At issue here is the doctrine of mootness. Actual controversies “must be extant at all stages of review, not merely at the time the complaint is filed.” Preiser v. Newkirk, 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975). A case is moot, and the court lacks jurisdiction to award relief, “when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Stop Reckless Econ. Instability Caused by Democrats v. Fed. Election Comm'n, 814 F.3d 221, 229 (4th Cir. 2016) (citation omitted).

Plaintiff relies on the Supreme Court's recent decision in Sackett v. Env't Prot. Agency, 598 U.S. 651, 143 S.Ct. 1322, 215 L.Ed.2d 579 (2023), to bring this Motion under Federal Rule of Civil Procedure 60(b)(5). ECF No. 120 at 1-2. That Rule allows the court to “relieve a party or its legal representative from a final judgment, order, or proceeding [because] ․ applying [the judgment] prospectively is no longer equitable ․” Fed. R. Civ. P. 60(b)(5).

In Sackett, the Court reached the question of when wetlands are “waters of the United States” under the Clean Water Act. 598 U.S. at 658, 143 S.Ct. 1322. To qualify, the Court held that such wetlands “must be indistinguishably part of a body of water that itself constitutes ‘waters’ under the [Clean Water Act.]” Id. at 676, 143 S.Ct. 1322. In other words, the party asserting jurisdiction must establish:

[F]irst, that the adjacent [body of water constitutes] ․ “water[s] of the United States,” (i.e., a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the “water” ends and the “wetland” begins.

Id. at 678-79, 143 S.Ct. 1322 (citation omitted).

IV. Analysis

More than a decade has passed since Defendant issued its approved jurisdictional determination on July 9, 2012. See ECF No. 76 at 2. And nearly a decade has passed since the Fourth Circuit affirmed this court's November 18, 2013 decision, finding that the administrative record supported Defendant's determination. ECF Nos. 108 (Opinion and Final Order), 115 (Appellate Opinion). Nevertheless, Plaintiff brings the instant Motion seeking vacatur. ECF No. 120 at 10. Specifically, Plaintiff asks the court to find that Defendant's jurisdiction over these wetlands, as determined in 2013, is “not equitable” pursuant to the Supreme Court's recent decision in Sackett. Id.

In its Opposition, Defendant argues that the “underlying Corps approved jurisdictional determination expired in 2017 ․ [leaving] no remaining prospective component to the 2013 judgment that could possibly warrant [Plaintiff's] requested relief.” ECF No. 125 at 1. Plaintiff does not contest that the approved jurisdictional determination expired after five years. ECF No. 126 at 2-3. Nevertheless, Plaintiff contends that the court's Opinion and Final Order granted Defendant jurisdiction over Plaintiff's Edinburgh Property in perpetuity. Id. at 3.⁴

Plaintiff's contention is belied by the record, and by the Opinion and Final Order itself. Turning to the underlying R&R, the Magistrate Judge recommended that the court “find the [Defendant] presented sufficient physical evidence to support its jurisdiction,” as asserted in Defendant's July 9, 2012 approved jurisdictional determination. EOF No. 100 at 32. The Magistrate Judge's recommendation was adopted and approved by the court. EOF No. 108 at 13. The court was not asked to look beyond Defendant's approved jurisdictional determination, and it did not do so. Indeed, the court specifically noted that “the Magistrate Judge's findings [were] limited due to the procedural posture of the case,” to conclude whether there was “enough evidence to support [Defendant's] finding that a significant nexus exists between the wetlands and the Northwest River.” Id. at 13 n.6. In other words, as the court stated, the sole question was: “Does the administrative record support [Defendant's] determination [?]” Id. at 5. The court found that it did. Id.⁵

A matter is moot “when the issues presented are no longer ‘live.’ ” Fed. Election Comm'n, 814 F.3d at 229 (citation omitted). Defendant asserts, and Plaintiff does not contest, that Defendant's approved jurisdictional determination expired after five years. ECF Nos. 125 at 1, 126 at 2-3; see Hawkes Co., 578 U.S. at 590, 136 S.Ct. 1807. Thus, it is uncontested that Defendant's July 9, 2012 determination expired in 2017, more than seven years ago. This approved jurisdictional determination was the basis for the court's Opinion and Final Order. Because this determination expired seven years ago, vacating the court's Opinion and Final Order would afford no relief to Plaintiff. As such, the matter is MOOT. The court has no jurisdiction to award further relief, as the issue presented is no longer live.⁶

V. Conclusion

For the reasons stated above, the court FINDS that the matter is MOOT, and the court is without jurisdiction to award further relief. Accordingly, Plaintiff's Motion for Relief from a Judgment, ECF No. 120, is DISMISSED. As suggested by Defendant, Plaintiff may “seek a new approved jurisdictional determination from [Defendant] if it desires clarity as to whether any wetlands that it [now] seeks to develop are protected by the Clean Water Act,” ECF No. 125 at 2, after which there may be a live “case and controversy” to be addressed by the court in a newly filed proceeding.⁷

IT IS SO ORDERED.

FOOTNOTES

2.   On February 14, 2025, Judge Raymond A. Jackson issued a Memorandum Opinion and Order in a related case, which involved the same parties and property as the instant case. Case No. 2:24-cv-337, ECF No. 27 (“Jackson Opinion”). That decision granted Defendant's Motion to Dismiss. Id.

4.   Specifically, Plaintiff states:The Corps contends the only executory provision of the Final Order expired when the [2012 approved jurisdictional determination (“AJD”) was issued] ․ Had the Corps only requested, and this Court only granted, approval of the 2012 AJD, the Corps’ argument might hold water. But the Court also ruled that the wetlands are subject to CWA jurisdiction “as a matter of law” ․ [and] [t]he Final Order contains no language limiting its application ․ECF No. 126 at 2–3.

5.   Moreover, the court agrees with Defendant that the court's 2013 judgment “did not order any injunctive relief or specify continuing jurisdiction over any aspect of this case.” ECF No. 125 at 11.

6.   Given that the matter is moot, the court does not address the application of Sackett to this case under Rule 60(b)(5).

7.   See supra note 6 and accompanying text.

REBECCA BEACH SMITH, SENIOR UNITED STATES DISTRICT JUDGE