Trout Unlimited v. Michelle Pirzadeh ( 2021 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    TROUT UNLIMITED,                     No. 20-35504
    Plaintiff-Appellant,
    D.C. Nos.
    and                  3:19-cv-00265-SLG
    3:19-cv-00267-SLG
    BRISTOL BAY ECONOMIC               3:19-cv-00268-SLG
    DEVELOPMENT CORPORATION;
    BRISTOL BAY NATIVE
    ASSOCIATION, INC.; UNITED              OPINION
    TRIBES OF BRISTOL BAY;
    BRISTOL BAY REGIONAL
    SEAFOOD DEVELOPMENT
    ASSOCIATION, INC.; BRISTOL
    BAY RESERVE ASSOCIATION;
    SALMONSTATE; ALASKA
    CENTER; ALASKA COMMUNITY
    ACTION ON TOXICS; ALASKA
    WILDERNESS LEAGUE; COOK
    INLETKEEPER; DEFENDERS OF
    WILDLIFE; EARTHWORKS;
    FRIENDS OF MCNEIL RIVER;
    NATIONAL PARKS
    CONSERVATION ASSOCIATION;
    NATIONAL WILDLIFE
    FEDERATION; NATURAL
    RESOURCES DEFENSE COUNCIL;
    SIERRA CLUB; WILD SALMON
    CENTER; MCNEIL RIVER
    ALLIANCE,
    Plaintiffs,
    2               TROUT UNLIMITED V. PIRZADEH
    v.
    MICHELLE PIRZADEH, in her
    official capacity as Acting
    Regional Administrator of the
    U.S. Environmental Protection
    Agency, Region 10; MELISSA
    HOFFER, in her official capacity
    as Acting General Counsel for
    EPA and delegated authority of
    the Administrator; U.S.
    ENVIRONMENTAL PROTECTION
    AGENCY; MICHAEL S. REGAN, in
    his official capacity as
    Administrator, *
    Defendants-Appellees,
    STATE OF ALASKA,
    Intervenor-Defendant-Appellee.
    Appeal from the United States District Court
    for the District of Alaska
    Sharon L. Gleason, District Judge, Presiding
    Argued and Submitted August 12, 2020
    San Francisco, California
    *
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Michelle Pirzadeh is substituted for her predecessor as Acting Regional
    Administrator of the U.S. Environmental Protection Agency, Region 10;
    Melissa Hoffer is substituted for her predecessor as Acting General
    Counsel for EPA; and Michael S. Regan is substituted for his
    predecessor as Administrator.
    TROUT UNLIMITED V. PIRZADEH                           3
    Filed June 17, 2021
    Before: Susan P. Graber and Daniel A. Bress, Circuit
    Judges, and Robert T. Dawson, ** District Judge.
    Opinion by Judge Graber;
    Dissent by Judge Bress
    SUMMARY ***
    Environmental Law / Administrative Procedure Act
    The panel affirmed in part, and reversed in part, the
    district court’s dismissal of an action challenging the U.S.
    Environmental Protection Agency (“EPA”)’s 2019
    withdrawal of its 2014 proposed determination to exercise
    its authority under Section 404(c) of the Clean Water Act to
    restrict the ability of miners to operate in part of the Bristol
    Bay watershed in southwestern Alaska.
    The district court held the EPA’s decision was
    unreviewable pursuant to 
    5 U.S.C. § 701
    (a)(2) of the
    Administrative Procedure Act’s exception to reviewability,
    and Heckler v. Chaney, 
    470 U.S. 821
     (1985), because neither
    the Clean Water Act nor the EPA’s regulations included a
    meaningful legal standard governing the EPA’s decision.
    **
    The Honorable Robert T. Dawson, United States District Judge
    for the Western District of Arkansas, sitting by designation.
    ***
    This summary constitutes no part of the opinion of the court. It
    has been prepared by court staff for the convenience of the reader.
    4             TROUT UNLIMITED V. PIRZADEH
    Reviewing de novo, the panel held that the Clean Water
    Act contained no meaningful legal standard in its broad grant
    of discretion to the EPA, but the EPA’s regulations
    contained a meaningful legal standard. Specifically, to the
    extent that plaintiff’s complaint challenged the EPA
    Administrator’s failure to take action pursuant to the Clean
    Water Act, without reference to the agency’s implementing
    regulations, the panel held that it lacked jurisdiction.
    Accordingly, the panel affirmed the district court’s dismissal
    of plaintiff’s complaint insofar as the complaint rested
    directly on the Clean Water Act. The panel held, however,
    that 
    40 C.F.R. § 231.5
    (a) allowed the EPA to withdraw a
    proposed determination only when an “unacceptable adverse
    effect” on specified resources was not “likely.”
    Accordingly, the decision was subject to judicial review
    under the Administrative Procedure Act. The panel
    remanded for further proceedings to determine whether the
    EPA’s withdrawal was arbitrary, capricious, an abuse of
    discretion, or contrary to law pursuant to 
    5 U.S.C. § 706
    (2)(A).
    The panel rejected the EPA’s argument that the
    withdrawal of the proposed determination here was best
    characterized as an agency’s decision not to take
    enforcement action that was presumptively unreviewable.
    Dissenting, Judge Bress would hold that the agency’s
    withdrawal from its discretionary exploratory process was
    not subject to judicial review. Judge Bress wrote that the
    majority opinion turned on a misreading of the governing
    regulations, rewrote the rules that the EPA set for itself, and
    inserted courts into what was supposed to be the preliminary
    stages of a discretionary agency review process.
    TROUT UNLIMITED V. PIRZADEH                  5
    COUNSEL
    Paul A. Werner III (argued), Steven P. Hollman, Abraham J.
    Shanedling, and Kirsten O. Ryan, Sheppard Mullin Richter
    & Hampton LLP, Washington, D.C., for Plaintiffs-
    Appellant.
    Anna T. Katselas (argued), Michael T. Gray, and Mark A.
    Nitczynski, Attorneys; Eric Grant, Deputy Assistant
    Attorney General; Environment and Natural Resources
    Division, United States Department of Justice, Washington,
    D.C.; Carrie Wehling and Heidi Nalven, Attorneys, United
    States Environmental Protection Agency, Washington, D.C.;
    for Defendants-Appellees.
    OPINION
    GRABER, Circuit Judge:
    The Bristol Bay watershed in southwestern Alaska
    contains considerable ecological and commercial resources.
    One of the greatest wild salmon fisheries in the world,
    Bristol Bay supports a diverse ecosystem, commercial
    fishing operations, recreational fishing, and a subsistence
    way of life for many tribal communities. The watershed also
    holds rich mineral stores, attracting the attention of mining
    companies. Competing interests have generated significant
    controversy over the best uses of the watershed, but this
    appeal stands apart from that debate; we decide only a single
    legal issue concerning the reviewability of an agency’s
    decision under the Administrative Procedure Act (“APA”).
    In 2014, the Environmental Protection Agency (“EPA”)
    formally proposed to exercise its authority under § 404(c) of
    6             TROUT UNLIMITED V. PIRZADEH
    the Clean Water Act to restrict the ability of miners to
    operate in part of the watershed. Five years later, after
    conducting nine public hearings and after receiving nearly
    two million public comments, the EPA withdrew its
    proposed determination by publishing an explanation in the
    Federal Register as its final agency action. Plaintiff Trout
    Unlimited then filed this action against Defendants EPA and
    several EPA officials in their official capacities, challenging
    the withdrawal of the EPA’s proposed determination as a
    violation of both the Clean Water Act and the implementing
    regulations.
    Courts ordinarily may review final agency actions, but
    Defendants moved to dismiss on the ground that the EPA’s
    withdrawal fell within an exception to reviewability for
    agency actions “committed to agency discretion by law,”
    
    5 U.S.C. § 701
    (a)(2). The district court agreed with
    Defendants, holding that the EPA’s decision was
    unreviewable pursuant to 
    5 U.S.C. § 701
    (a)(2) and Heckler
    v. Chaney, 
    470 U.S. 821
     (1985). In the district court’s view,
    neither the Clean Water Act nor the EPA’s regulations
    include a meaningful legal standard governing the EPA’s
    decision.
    Reviewing de novo, City and County of San Francisco
    v. U.S. Dept. of Transp., 
    796 F.3d 993
    , 998 (9th Cir. 2015),
    we hold that (a) the Clean Water Act contains no meaningful
    legal standard in its broad grant of discretion to the EPA but
    that (b) the EPA’s regulations do contain a meaningful legal
    standard. In particular, 
    40 C.F.R. § 231.5
    (a) allows the EPA
    to withdraw a proposed determination only when an
    “unacceptable adverse effect” on specified resources is not
    “likely.” Accordingly, we affirm in part and reverse in part
    the dismissal. We remand for further proceedings to
    determine whether the EPA’s withdrawal was arbitrary,
    TROUT UNLIMITED V. PIRZADEH                            7
    capricious, an abuse of discretion, or contrary to law,
    
    5 U.S.C. § 706
    (2)(A). We express no view on that question.
    BACKGROUND
    A. Section 404(c) of the Clean Water Act
    The Clean Water Act generally prohibits the discharge
    of dredged and fill materials into the waters of the United
    States without a permit. 
    33 U.S.C. §§ 1311
    (a), 1344(a).
    Section 404 of the Act governs “[p]ermits for dredged or fill
    material” and assigns varying responsibilities to two
    agencies: the U.S. Army Corps of Engineers and the EPA.
    
    Id.
     § 1344. Generally speaking, the Corps administers the
    § 404 permitting program, 1 and the EPA uses its
    environmental expertise to shape the contours of the
    program. See, e.g., 
    44 Fed. Reg. 58076
    , 58081 (Oct. 9,
    1979) (“While Congress had faith in the Corps’
    administrative experience, it recognized EPA as the
    ‘environmental conscience’ of the Clean Water Act.”).
    Section 404(a) provides that the Corps “may issue
    permits . . . for the discharge of dredged or fill material into
    the navigable waters at specified disposal sites.” 
    Id.
    § 1344(a).      Section 404(b), titled “[s]pecification for
    disposal sites,” requires the Corps to “specif[y]” “each such
    disposal site . . . for each such permit.” Id. § 1344(b). But
    the Corps’ § 404(b) authority to specify disposal sites is
    expressly “[s]ubject to subsection (c) of this section.” Id. In
    turn, § 404(c) provides in full:
    1
    A State may also create its own permitting program under the Act,
    which shifts many of the Act’s responsibilities to the State. 
    33 U.S.C. § 1344
    (g). Like most States, Alaska has chosen not to create its own
    program, so our analysis focuses on the roles of the two federal agencies.
    8                TROUT UNLIMITED V. PIRZADEH
    The Administrator [of the EPA] is authorized
    to prohibit the specification (including the
    withdrawal of specification) of any defined
    area as a disposal site, and he is authorized to
    deny or restrict the use of any defined area for
    specification (including the withdrawal of
    specification) as a disposal site, whenever he
    determines, after notice and opportunity for
    public hearings, that the discharge of such
    materials into such area will have an
    unacceptable adverse effect on municipal
    water supplies, shellfish beds and fishery
    areas (including spawning and breeding
    areas), wildlife, or recreational areas. Before
    making        such       determination,      the
    Administrator shall consult with the
    Secretary [of the Army]. The Administrator
    shall set forth in writing and make public his
    findings and his reasons for making any
    determination under this subsection.
    
    Id.
     § 1344(c).
    Section 404(c) thus “authorize[s]” the Administrator of
    the EPA to take action “whenever he determines” that the
    discharge of dredged or fill material “will have an
    unacceptable adverse effect” on environmental resources.
    Id.; see 
    40 C.F.R. § 231.2
    (e) (defining “unacceptable
    adverse effect” to encompass “significant degradation of
    municipal water supplies . . . or significant loss of or damage
    to” other resources). The Administrator may declare an area
    off-limits entirely for a § 404 permit (“prohibit the
    specification”); or, less drastically, he may “restrict the use”
    of an area, thus limiting the scope of any allowable § 404
    permit. Id.; 
    40 C.F.R. § 231.2
    (b)–(c); see 44 Fed. Reg. at
    TROUT UNLIMITED V. PIRZADEH                     9
    58076 (stating that the EPA could restrict the use of an area
    by, for example, prohibiting a particular dredged or fill
    material). The EPA has interpreted the statutory text to
    allow it to act at any time: before a permit application has
    been filed, while a permit application is pending, or even
    after the Corps has issued a permit. 44 Fed. Reg. at 58076;
    
    40 C.F.R. § 231.2
    (a)–(c); see also Mingo Logan Coal Co. v.
    U.S. EPA, 
    714 F.3d 608
    , 612–16 & n.3 (D.C. Cir. 2013)
    (holding that the statute’s use of the phrases “whenever” and
    “including the withdrawal of specification” evince
    Congress’ intent to allow the EPA to use its § 404(c)
    authority after a permit issues). The EPA and others have
    referred to the § 404(c) authority as a “veto.” E.g., 44 Fed.
    Reg. at 58076, 58081; Mingo Logan, 714 F.3d at 613.
    The statute requires “notice and opportunity for public
    hearings,” and it requires the Administrator to issue a public,
    written explanation for any § 404(c) determination.
    
    33 U.S.C. § 1344
    (c). But the statute is silent on the
    mechanics and details of those requirements.
    B. Implementing Regulations
    In 1979, the EPA promulgated extensive regulations that
    govern the exercise of its § 404(c) authority. 
    40 C.F.R. §§ 231.1
    –231.8. Because the regulations are important to
    this appeal, we describe them in some detail.
    The § 404(c) process starts with a “proposed
    determination” by a Regional Administrator.                  Id.
    § 231.1(b)(1). “If the Regional Administrator has reason to
    believe . . . that an ‘unacceptable adverse effect’ could result
    from the specification or use for specification of a defined
    area for the disposal of dredged or fill material, he may
    initiate the following actions . . . .” Id. § 231.3(a). The
    Regional Administrator first may notify the Corps’ District
    10            TROUT UNLIMITED V. PIRZADEH
    Engineer, the owner of the site, and any permit applicant of
    the Regional Administrator’s intent to issue public notice of
    “a proposed determination to prohibit or withdraw the
    specification, or to deny, restrict or withdraw the use for
    specification . . . of any defined area as a disposal site.” Id.
    § 231.3(a)(1). If the recipients persuade the Regional
    Administrator that no adverse effect will result, then the
    process ends. Id. § 231.3(a)(1)–(2). But if the recipients do
    not “demonstrate[] to the satisfaction of the Regional
    Administrator that no unacceptable adverse effect(s) will
    occur . . . , the Regional Administrator shall publish notice
    of a proposed determination in accordance with the
    procedures of this section.” Id. § 231.3(a)(2).
    “Every public notice shall contain, at a minimum,” seven
    enumerated items describing the proposed determination
    and other information pertaining to the site. Id. § 231.3(b).
    The Regional Administrator must publish the notice in the
    Federal Register and in a local newspaper, and the Regional
    Administrator also must mail the notice to state and federal
    agencies and to various persons, such as the owner of the site
    and anyone who has subscribed to receive § 404(c) notices.
    Id. § 231.3(d).
    Publication of the notice begins a public comment
    period, and “any interested persons may submit written
    comments.” Id. § 231.4(a). “Comments should be directed
    to whether the proposed determination should become the
    final determination and corrective action that could be taken
    to reduce the adverse impact of the discharge.” Id. The
    Regional Administrator must consider the comments. Id.
    The Regional Administrator “shall hold a public
    hearing” in certain circumstances: “if an affected landowner
    or permit applicant or holder requests a hearing,” if there is
    a “significant degree of public interest” in a proposed
    TROUT UNLIMITED V. PIRZADEH                  11
    determination, or if “it would be otherwise in the public
    interest to hold a hearing.” Id. § 231.4(b). If the Regional
    Administrator holds a public hearing, he or she must issue
    another public notice, containing all the original information
    plus the details of the hearing. Id. §§ 231.3(c), 231.4(b). “A
    record of the proceeding shall be made by either tape
    recording or verbatim transcript.” Id. § 231.4(c). Anyone
    may testify or submit written statements, and anyone may be
    represented by counsel. Id. § 231.4(d). “The Regional
    Administrator or his designee shall afford the participants an
    opportunity for rebuttal.” Id. § 231.4(d). Persons may
    submit written comments after the hearing to be included as
    part of the hearing file. Id. § 231.4(f).
    Publication of the notice of a proposed determination
    also triggers a requirement that the EPA maintain an
    administrative record. Id. § 231.4(g). The administrative
    record “shall consist of” a range of documents, including all
    public comments, the hearing file, the hearing transcript, any
    record pertaining to the site maintained by the Corps, and
    “[a]ny other information considered by the Regional
    Administrator or his designee.” Id. § 231.5(e).
    The Regional Administrator’s issuance of a proposed
    determination also has an immediate effect on the Corps.
    Once the Regional Administrator notifies the Corps of the
    proposed determination, the Corps may not issue a permit
    until the EPA concludes its § 404(c) process. 
    33 C.F.R. § 323.6
    (b); 
    40 C.F.R. § 231.3
    (a)(2). But “the Corps will
    continue to complete the administrative processing of [any
    permit] application while the section 404(c) procedures are
    underway.” 
    33 C.F.R. § 323.6
    (b).
    12            TROUT UNLIMITED V. PIRZADEH
    Soon after the public-comment period ends,
    [t]he Regional Administrator or his
    designee shall . . . either withdraw the
    proposed determination or prepare a
    recommended determination to prohibit or
    withdraw specification, or to deny, restrict, or
    withdraw the use for specification, of the
    disposal site because the discharge of
    dredged or fill material at such site would be
    likely to have an unacceptable adverse effect.
    
    40 C.F.R. § 231.5
    (a).
    If the Regional Administrator issues a recommended
    determination, then he or she forwards the administrative
    record for the Administrator’s review. 
    Id.
     § 231.5(b). The
    Administrator then makes “a final determination affirming,
    modifying, or rescinding the recommended determination,”
    after allowing the interested parties a final opportunity to
    comment. Id. § 231.6. A final determination must be
    published in the Federal Register (and elsewhere), and it
    “constitutes final agency action.” Id. § 231.6.
    If the Regional Administrator decides, instead, as
    happened here, to withdraw the proposed determination,
    then he or she notifies the Administrator. Id. § 231.5(c). The
    Regional Administrator also must notify everyone who
    previously commented, and those persons “may submit
    timely written recommendations concerning review.” Id.
    § 231.5(c). The Administrator may decide to review the
    withdrawal, which results in the same review process by the
    Administrator described above.             Id. § 231.5(c)(2).
    Alternatively, the Administrator may accept the withdrawal
    by declining to notify the Regional Administrator of an
    intent to review the withdrawal. Id. § 231.5(c). “If the
    TROUT UNLIMITED V. PIRZADEH                  13
    Administrator does not notify him, the Regional
    Administrator shall give notice [of] the withdrawal of the
    proposed determination” by publishing the withdrawal in the
    Federal Register (and elsewhere). Id. § 231.5(c)(1). “Such
    notice shall constitute final agency action.”            Id.
    § 231.5(c)(1).
    The regulations generally prescribe short timeframes,
    ranging from fifteen to sixty days, for each of the many
    stages of the process. E.g., id. §§ 231.3(a)(2), 231.4(a),
    231.5(a), 231.6. But the EPA recognized that the process
    may take longer: The Administrator or the Regional
    Administrator may extend the deadlines “upon a showing of
    good cause.” Id. § 231.8. “Notice of any such extension
    shall be published in the Federal Register and, as
    appropriate, through other forms of notice.” Id.
    The EPA has started the § 404(c) process only about a
    dozen times in the half-century since the Clean Water Act’s
    enactment. 
    79 Fed. Reg. 42314
    , 42317 (July 21, 2014)
    (stating that it had “completed only 13 section 404(c)
    actions” in the history of the Act). Nearly every time, the
    EPA has issued a final determination that constrains the use
    of the defined area in some way. Only twice has the EPA
    decided to withdraw a proposed determination.
    The first time that the EPA withdrew a proposed
    determination was in 1991. The Regional Administrator had
    proposed to restrict the site of a pending project to place
    gravel on tundra wetlands. 
    56 Fed. Reg. 58247
    -01, 58247
    (Nov. 18, 1991). As a result of the § 404(c) public process,
    the project manager significantly revised the project, and the
    Corps accommodated the change by approving a
    modification of an existing permit. Id. The EPA then
    concluded that the “revised project . . . represents a
    significant reduction in scope and is environmentally
    14            TROUT UNLIMITED V. PIRZADEH
    acceptable to EPA.” Id. The EPA accordingly withdrew its
    proposed determination and listed seven detailed reasons.
    Id. For example, the revised project filled in fewer acres of
    wetlands with gravel and thereby posed less of a threat to
    species such as the tundra swan, brant, and caribou. Id.
    The only other time that the EPA has withdrawn a
    proposed determination concerns Bristol Bay and is the
    subject of this appeal.
    C. The Bristol Bay Watershed and Potential Mining
    The Bristol Bay watershed encompasses a vast
    geographical area in the southwestern corner of Alaska and
    is home to 25 federally recognized tribes. The EPA has
    described the watershed as “an area of unparalleled
    ecological value, boasting salmon diversity and productivity
    unrivaled anywhere in North America,” and as “one of the
    greatest wild salmon fisheries left in the world.” 79 Fed.
    Reg. at 42315–16. “The Bristol Bay watershed’s streams,
    wetlands, and other aquatic resources support world-class,
    economically important commercial and sport fisheries for
    salmon and other fishes, as well as a more than 4,000-year-
    old subsistence-based way of life for Alaska Natives.”
    79 Fed. Reg. at 42315. “These salmon populations, in turn,
    maintain the productivity of the entire ecosystem, including
    numerous other fish and wildlife species.” Id.
    The watershed also contains valuable minerals,
    including copper, gold, and molybdenum, most densely
    located in an area known as the Pebble deposit. Id. Since
    the 1980s, mining companies have considered extracting
    minerals from the watershed. In the first decade of the
    2000s, Pebble Limited Partnership, Northern Dynasty
    Minerals, Ltd., and their subsidiaries (collectively, “PLP”)
    staked claims to minerals and began discussions with the
    TROUT UNLIMITED V. PIRZADEH                   15
    EPA, the Corps, and other agencies about obtaining the
    permits needed to mine the Pebble deposit. In early 2011,
    PLP submitted preliminary mining plans to the Securities
    and Exchange Commission. The plans described three
    stages of open-pit mining, with each stage encompassing an
    ever-greater scope, ultimately extracting up to 12 billion tons
    of ore.
    Meanwhile, in 2010, nine tribal governments requested
    that the EPA invoke its § 404(c) authority to protect the
    watershed’s valuable natural resources from mining. The
    EPA then received similar requests from additional tribes,
    tribal organizations, commercial and recreational fishers,
    seafood processors, chefs, restaurant and supermarket
    owners, fishing and hunting guides, owners of sports fishing
    and hunting lodges, sporting goods manufacturers and
    vendors, a coalition of jewelry companies, conservation
    organizations, members of the faith community, and elected
    officials. Others requested that the EPA refrain from
    invoking § 404(c): four tribal governments, other tribal
    organizations, the governor of Alaska, and lawyers
    representing PLP.
    In early 2011, the EPA began a scientific study of the
    potential effects of large-scale mining on the watershed and,
    in January 2014, the effort culminated in the EPA’s
    Watershed Assessment.          The Watershed Assessment
    considered the effects of mining from three different
    scenarios, chosen from the preliminary plans that the PLP
    had submitted to the Securities and Exchange Commission.
    The Watershed Assessment described many risks to natural
    and human resources posed by each scenario, including the
    scenario with the smallest mine.
    16            TROUT UNLIMITED V. PIRZADEH
    D. Proposed Determination in 2014 and Withdrawal in
    2019
    In 2014, six months after completing the Watershed
    Assessment, the EPA issued a proposed determination under
    § 404(c). 
    79 Fed. Reg. 42314
    . The Regional Administrator
    of EPA’s Region 10 issued the proposed determination
    “because of the high ecological and economic value of the
    Bristol Bay watershed and the assessed unacceptable
    environmental effects that would result from” mining the
    Pebble deposit. 
    Id. at 42315
    . The proposed determination
    did not encompass the entire watershed and did not ban all
    mining. Instead, the Regional Administrator proposed to
    prohibit any mines within the geographical area of the
    Pebble deposit that would result in any of the following
    conditions: (1) the loss of five miles of streams with
    documented salmon presence, or nineteen miles of
    tributaries of those streams; (2) the loss of 1,100 or more
    acres of wetlands, lakes, and ponds contiguous with salmon
    streams or tributaries; or (3) streamflow alterations greater
    than 20% of daily flow in nine miles of salmon streams. 
    Id. at 42317
    . The Regional Administrator calculated those
    limits from the expected effects of the smallest mine
    described in the PLP’s preliminary mining plans, the same
    plans that the EPA had assessed in the 2014 Watershed
    Assessment. 
    Id.
    The EPA’s consideration of the proposed determination
    over the next five years had many twists and turns. See
    
    84 Fed. Reg. 45749
    -01, 45749–50 (Aug. 30, 2019)
    (describing the procedural history in some detail). We
    describe only the points most salient to this appeal.
    In 2014 and again in 2017, the EPA solicited public
    comment. During the initial comment period, stemming
    from publication of the proposed determination, the EPA
    TROUT UNLIMITED V. PIRZADEH                 17
    received more than 670,000 written comments, and more
    than 800 people participated in seven separate hearings held
    in the watershed and in Anchorage. 
    82 Fed. Reg. 33123
    -01,
    33123 (Jul. 19, 2017). During the second comment period,
    stemming from the EPA’s 2017 proposal to withdraw the
    proposed determination, the EPA received more than a
    million written comments, and about 200 people participated
    in two additional hearings held in the watershed. 84 Fed.
    Reg. at 45750.
    In December 2017, PLP applied for a § 404 permit from
    the Corps to mine the Pebble deposit. 84 Fed. Reg. at 45750.
    According to the EPA, the proposed mine differs in several
    respects from the assumptions that underlie the 2014
    proposed determination. 84 Fed. Reg. at 45753. For
    example, unlike PLP’s preliminary plans in 2011, the PLP
    now plans to place a liner under a disposal facility, to use
    less waste rock, and to extract minerals using methods other
    than cyanide leaching. Id.
    The permit application caused the Corps to begin
    preparing an environmental impact statement and, at the
    Corps’ invitation, the EPA became a “cooperating agency”
    for purposes of developing the environmental impact
    statement. 84 Fed. Reg. at 45750; see 
    40 C.F.R. § 1501.8
    (describing the role of cooperating agencies). The permit
    application also triggered certain procedural rights that the
    EPA possesses pursuant to an existing memorandum of
    agreement between the Corps and the EPA under § 404(q)
    of the Clean Water Act, 
    33 U.S.C. § 1344
    (q). 84 Fed. Reg.
    at 45752.
    In August 2019, the EPA formally withdrew the
    proposed determination in a detailed, eight-page public
    notice. 
    84 Fed. Reg. 45749
    -01. Pointing to differences
    between the PLP’s permit application in 2017 and the EPA’s
    18                TROUT UNLIMITED V. PIRZADEH
    assumptions in 2014, the EPA explained that the factual
    basis for the 2014 proposed determination “has effectively
    grown stale.” 84 Fed. Reg. at 45753. The EPA also
    expressed confidence in its ability “to work constructively
    with the Corps” pursuant to the procedures available to the
    EPA both as a “cooperating agency” and as described in the
    § 404(q)     memorandum       of      agreement—procedural
    opportunities that were unavailable to the EPA in 2014.
    84 Fed. Reg. at 45754–55. “If EPA believes that these
    processes are not addressing its concerns, EPA retains the
    discretion and the authority to . . . initiat[e] a new section
    404(c) process that is informed by the entirety of the facts
    and the Corps’ decision-making known to the Agency at that
    time.” 84 Fed. Reg. at 45755.
    E. This Action
    In 2019, a few months after the EPA withdrew its
    proposed determination, Plaintiff Trout Unlimited brought
    this action. 2 Plaintiff describes itself as “the nation’s largest
    sportsman’s organization dedicated to coldwater
    conservation,” with hundreds of thousands of members
    nationwide and more than 20,000 members and supporters
    in Alaska. Plaintiff alleges that the EPA’s withdrawal of the
    proposed determination was arbitrary, capricious, an abuse
    of discretion, and contrary to law, in violation of the Clean
    2
    Other organizations also filed similar suits, and the district court
    consolidated the cases. Plaintiff Trout Unlimited is the only appellant
    before us, so we use the singular “Plaintiff.”
    The State of Alaska intervened as a Defendant but took no position
    on the reviewability of the EPA’s actions. On appeal, the State expressly
    declined to file a brief and, instead, notified us that, “[i]n the event this
    Court reverses, Alaska will renew its briefing on the merits before the
    District Court on remand.”
    TROUT UNLIMITED V. PIRZADEH                 19
    Water Act, the EPA’s regulations, and the APA. Plaintiff
    alleges, among other things, that political considerations
    improperly motivated the EPA to abandon, without adequate
    explanation, its many earlier scientific judgments that
    mining in the watershed would have unacceptable effects.
    The district court granted Defendants’ motion to dismiss.
    The court concluded that the EPA’s withdrawal was
    unreviewable because it was best characterized as a decision
    not to take an enforcement action and because neither the
    statute nor the regulations provide a meaningful legal
    standard for the court to apply. Plaintiff timely appeals.
    In July 2020, the Corps issued a final environmental
    impact statement. 
    85 Fed. Reg. 44890
    -01. In November
    2020, the Corps denied PLP’s permit application. Neither
    the Corps’ denial of a permit nor any other reported action
    by the relevant agencies has mooted this appeal, because an
    order setting aside the agency’s withdrawal would have
    effects beyond PLP’s specific permit application. See, e.g.,
    “Corps of Engineers allows Pebble appeal for critical
    permit,” The Cordova Times (Mar. 6, 2021), available at:
    https://www.thecordovatimes.com/2021/03/06/corps-of-
    engineers-allows-pebble-appeal-for-critical-permit/
    (reporting that PLP’s administrative appeal of the permit
    denial remains pending before the Corps); “E.P.A. to
    Review Attacks on Science Under Trump,” The New York
    Times       (Mar.     24,      2021),       available    at:
    https://www.nytimes.com/2021/03/24/climate/trump-science
    -epa.html (reporting that the EPA plans to review the
    agency’s past decisions, including decisions pertaining to
    the Pebble mine, for improper political influence).
    20              TROUT UNLIMITED V. PIRZADEH
    DISCUSSION
    The sole question before us is whether the EPA’s
    withdrawal of its proposed determination is reviewable.
    The APA generally authorizes courts to review a “final
    agency action for which there is no other adequate remedy
    in a court.” 
    5 U.S.C. § 704
    . The EPA’s publication of the
    withdrawal in the Federal Register, following notice and
    comment, marked “the consummation of the agency’s
    decisionmaking process.” Bennett v. Spear, 
    520 U.S. 154
    ,
    178 (1997) (internal quotation marks omitted).
    Additionally, “legal consequences . . . flow[ed]” from the
    decision. Bennett, 
    520 U.S. at 178
     (internal quotation marks
    omitted). For example, the withdrawal meant that the Corps
    no longer was barred from issuing a permit pertaining to the
    Pebble deposit.       
    33 C.F.R. § 323.6
    (b); 
    40 C.F.R. § 231.3
    (a)(2). We therefore agree with the parties that the
    EPA’s withdrawal of its proposed determination constituted
    a “final agency action” for purposes of the APA. 3
    Most—but not all—final agency actions are reviewable.
    “The Administrative Procedure Act embodies a basic
    presumption of judicial review and instructs reviewing
    courts to set aside agency action that is ‘arbitrary, capricious,
    an abuse of discretion, or otherwise not in accordance with
    law,’ 
    5 U.S.C. § 706
    (2)(A).” Dep’t of Com. v. New York,
    3
    The EPA’s regulations specify that the publication of a withdrawal
    of a proposed determination “shall constitute final agency action,”
    
    40 C.F.R. § 231.5
    (c)(1), signaling that the agency considers the process
    complete. But we, not the agency, are tasked with determining our own
    jurisdiction under the APA, a statute that the EPA does not administer.
    Accordingly, we do not accord the agency deference on questions of
    reviewability under the APA. Dandino, Inc. v. U.S. Dept. of Transp.,
    
    729 F.3d 917
    , 920 n.1 (9th Cir. 2013).
    TROUT UNLIMITED V. PIRZADEH                 21
    
    139 S. Ct. 2551
    , 2567 (2019) (citation and internal quotation
    marks omitted). The “strong presumption that Congress
    intends judicial review of administrative action . . . is
    overcome only in two narrow circumstances.” ASSE Int’l,
    Inc. v. Kerry, 
    803 F.3d 1059
    ,1068 (9th Cir. 2015) (citations
    and internal quotation marks omitted). The first exception,
    which is not at issue here, applies “when Congress expressly
    bars review by statute.” Pinnacle Armor, Inc. v. United
    States, 
    648 F.3d 708
    , 718–19 (9th Cir. 2011) (citing 
    5 U.S.C. § 701
    (a)(1)). The second exception applies when “agency
    action is committed to agency discretion by law.” 
    5 U.S.C. § 701
    (a)(2). Defendants argue that the EPA’s withdrawal of
    the proposed determination falls within that second
    exception.
    The Supreme Court has “read the § 701(a)(2) exception
    for action committed to agency discretion ‘quite narrowly.’”
    Dep’t of Commerce, 
    139 S. Ct. at 2568
     (citation omitted).
    The APA expressly contemplates judicial review of an
    agency’s ordinary discretionary judgments by authorizing
    review of an agency’s action for “abuse of discretion.”
    
    5 U.S.C. § 706
    (2)(A). The § 701(a)(2) exception therefore
    applies only “if no judicially manageable standards are
    available for judging how and when an agency should
    exercise its discretion.” Heckler, 
    470 U.S. at 830
    . “Only
    where there is truly no law to apply have we found an
    absence of meaningful standards of review.” Perez Perez v.
    Wolf, 
    943 F.3d 853
    , 861 (9th Cir. 2019) (internal quotation
    marks omitted).
    Below, we first consider whether (A) a judicially
    manageable legal standard governs the agency’s exercise of
    discretion.  We then address Defendants’ alternative
    argument that the agency’s withdrawal of the proposed
    22            TROUT UNLIMITED V. PIRZADEH
    determination is best characterized as (B) a decision not to
    take enforcement action.
    A. Judicially Manageable Legal Standard
    “In order to assess whether the court has a meaningful
    standard against which to judge the agency’s exercise of
    discretion[,] we first look at the statute itself.” ASSE Int’l,
    803 F.3d at 1069 (cleaned up). “[W]e consider ‘the language
    of the statute and whether the general purposes of the statute
    would be endangered by judicial review.’” Pinnacle,
    
    648 F.3d at 719
     (citation omitted).
    But “the mere fact that a statute contains discretionary
    language does not make agency action unreviewable.” 
    Id.
    (internal quotation marks omitted). “Even where statutory
    language grants an agency unfettered discretion, its decision
    may nonetheless be reviewed if regulations or agency
    practice provide a meaningful standard by which this court
    may review its exercise of discretion.” ASSE Int’l, 803 F.3d
    at 1069 (internal quotation marks omitted). “[W]e ‘will find
    jurisdiction to review allegations that an agency has abused
    its discretion by exceeding its legal authority or by failing to
    comply with its own regulations.’” Id. (quoting Abdelhamid
    v. Ilchert, 
    774 F.2d 1447
    , 1450 (9th Cir. 1985)). In those
    situations, the agency has chosen to constrain its own
    discretion via regulations that carry the force of law. Id.
    at 1070. So long as the regulations “provide a ‘meaningful
    standard’ by which a court could review the [agency’s]
    actions” and our review of the agency’s compliance with
    those regulations does not “infring[e] any of the [agency’s]
    prerogatives under the statute,” then we have jurisdiction,
    pursuant to the APA, to review the agency’s compliance
    with its own regulations. Id. at 1068–69; see also E.
    Oakland-Fruitvale Plan. Council v. Rumsfeld, 
    471 F.2d 524
    ,
    534 (9th Cir. 1972) (“If a statute or regulation establishes a
    TROUT UNLIMITED V. PIRZADEH                   23
    rule governing the conduct of the agency with respect to an
    aspect of the agency action, a court may determine whether
    the agency has complied with that rule.”).
    “[I]t is only in the context of [the plaintiff’s] complaint
    that we can determine if there is law to be applied in the
    instant case.” Perez Perez, 943 F.3d at 864 (internal
    quotation marks omitted). Here, Plaintiff alleges that the
    Regional Administrator’s withdrawal of the proposed
    determination violated both (1) § 404(c) of the Clean Water
    Act and (2) the agency’s implementing regulations. We
    address each source of law in turn.
    1. Section 404(c) of the Clean Water Act
    Congress provided that “[t]he Administrator is
    authorized” to restrict the specification “of any defined area
    . . . as a disposal site, whenever he determines, after notice
    and opportunity for public hearings, that the discharge of
    such materials into such area will have an unacceptable
    adverse effect” on specified resources. 
    33 U.S.C. § 1344
    (c)
    (emphases added). The statute clearly conveys broad
    discretion on the Administrator. The Administrator “is
    authorized,” but not required, to restrict an area. See City
    and County of San Francisco, 796 F.3d at 1002
    (emphasizing that the statute’s use of permissive wording
    “makes clear that [the agency’s decision] is discretionary”).
    The statute grants authority to the Administrator “whenever
    he determines” that adverse effects will result, not whenever
    it can be shown that adverse effects will result. See Webster
    v. Doe, 
    486 U.S. 592
    , 600 (1988) (holding that, because the
    statute authorized the Director of the Central Intelligence
    Agency to fire an employee “whenever the Director ‘shall
    deem such termination necessary or advisable in the interests
    of the United States’ (emphasis added), not simply when the
    dismissal is necessary or advisable to those interests,” the
    24               TROUT UNLIMITED V. PIRZADEH
    statute “fairly exudes deference to the Director”). And the
    number of “any defined [geographical] area[s]” is limitless,
    suggesting that the agency retains discretion to choose
    among areas of infinite variation. Cf. Ctr. for Pol’y Analysis
    on Trade & Health v. Off. of the U.S. Trade Rep., 
    540 F.3d 940
    , 945–47 (9th Cir. 2008) (holding that a statutory
    requirement that a trade group be “fairly balanced” was
    unreviewable, in part because of the countless perspectives
    and categories of potential representatives).
    Nothing in the statute constrains the Administrator’s
    discretion to initiate a public notice and comment period or,
    ultimately, to decline to invoke his or her § 404(c)
    authority. 4 The discretionary judgment as defined by the
    statute likely “involve[s] balancing a number of
    considerations, including availability and allocation of
    agency resources, the predicted outcome of any
    [investigation], and agency policies and priorities”—
    considerations that ordinarily are beyond the scope of
    judicial review. City and County of San Francisco, 796 F.3d
    at 1002.
    4
    Of course, if the Administrator does choose to exercise discretion
    by restricting the specification of a disposal site, the statute equally
    plainly constrains that decision. The Administrator may exercise
    § 404(c) authority only when he or she has determined that a discharge
    “will have an unacceptable adverse effect.” Id. Not surprisingly then,
    courts have reviewed the Administrator’s exercise of § 404(c) authority.
    E.g., Mingo Logan Coal, 714 F.3d at 609. But the fact that the agency’s
    decision to exercise § 404(c) authority is governed by a judicially
    manageable standard does not mean that the agency’s decision not to
    exercise that authority necessarily is governed by the same standard. See
    Bear Valley Mut. Water Co. v. Jewell, 
    790 F.3d 977
    , 989 (9th Cir. 2015)
    (rejecting the argument that “if there is a manageable standard to review
    an agency’s decision to exclude, . . . the same standard can, and should
    be, used to review an agency’s decision not to exclude”).
    TROUT UNLIMITED V. PIRZADEH                   25
    Accordingly, we lack jurisdiction to review, for example,
    a plaintiff’s challenge that the Administrator abused his or
    her discretion by declining to initiate notice and comment
    with respect to a particular geographical area or, as another
    example, a plaintiff’s challenge that the Administrator
    abused his or her discretion by declining to determine that
    discharge into an area “will have an unacceptable adverse
    effect” pursuant to the statute. The statute grants unfettered
    discretion to the Administrator to make those decisions. And
    given the practically limitless number of geographical areas
    that the Administrator conceivably could consider,
    subjecting each decision not to invoke § 404(c) could
    overwhelm the agency’s resources and frustrate the statutory
    purpose of protecting the nation’s waters. See 44 Fed. Reg.
    at 58081 (declining to create a formal process for persons to
    request that the Administrator invoke § 404(c) because, it
    “might lead to the regional 404 staff being swamped with
    requests”). We therefore agree with the majority of courts
    that have held that plaintiffs may not bring statutory
    challenges to the Administrator’s decision not to invoke
    § 404(c). See, e.g., Ctr. for Biological Diversity v. U.S. Army
    Corps of Eng’rs, No. CV 14-1667 PSG (CWx), 
    2014 WL 12923196
    , at *6 (C.D. Cal. Sep. 26, 2014) (unpublished);
    City of Olmstead Falls v. U.S. EPA, 
    266 F. Supp. 2d 718
    ,
    723 (N.D. Ohio 2003), aff’d 
    435 F.3d 632
     (6th Cir. 2006);
    Pres. Endangered Areas of Cobb’s Hist., Inc. v. U.S. Army
    Corps of Eng’rs, 
    915 F. Supp. 378
    , 381 (N.D. Ga. 1995),
    aff’d 
    87 F.3d 1242
     (11th Cir. 1996); but see All. to Save the
    Mattaponi v. U.S. Army Corps of Eng’rs, 
    515 F. Supp. 2d 1
    ,
    8 (D.D.C. 2007) (holding to the contrary after brief analysis).
    To the extent that Plaintiff’s complaint challenges the
    Administrator’s failure to take action pursuant to the statute,
    without reference to the agency’s implementing regulations,
    we lack jurisdiction over that challenge. Accordingly, we
    26            TROUT UNLIMITED V. PIRZADEH
    affirm the district court’s dismissal of Plaintiff’s complaint
    insofar as the complaint rests directly on the Clean Water
    Act.
    B. Implementing Regulations
    The statutory grant of unfettered discretion does not end
    the analysis, though, because Plaintiff’s primary challenge is
    that the EPA failed to comply with its own regulations. We
    therefore assess whether the pertinent regulations have
    constrained the agency’s discretion by supplying a
    meaningful legal standard against which to measure the
    agency’s action. ASSE Int’l, 803 F.3d at 1069–72.
    Title 
    40 C.F.R. § 231.3
     establishes the procedure for
    issuing a proposed determination.         If the Regional
    Administrator has “reason to believe . . . that an
    ‘unacceptable adverse effect’ could result” from
    specification, he or she “may initiate [two] actions:”
    notifying various parties of the possibility of a proposed
    determination and publishing notice of a proposed
    determination, thereby triggering a public comment period.
    
    40 C.F.R. § 231.3
    (a) (emphasis added).
    Notably, 
    40 C.F.R. § 231.3
     tracks the statute’s
    permissive terminology. Nothing requires the Regional
    Administrator to take any action with respect to a proposed
    determination; instead, the Regional Administrator “may
    initiate [the specified] actions.” 
    Id.
     § 231.3(a) (emphasis
    added). This step in the regulatory process thus retains the
    agency’s unfettered discretion, and we find no meaningful
    legal standard that constrains the Regional Administrator’s
    determinations not to take action under § 231.3.
    Once the Regional Administrator publishes notice of a
    proposed determination, however, the regulations impose
    TROUT UNLIMITED V. PIRZADEH                    27
    mandatory procedural and substantive obligations. Public
    notice of the proposed determination “shall be given,” id.
    § 231.3(b); the notice “shall contain” specified information,
    id. § 231.3(b); the notice “shall . . . be published in the
    Federal Register” and elsewhere, id. § 231.3(d); the agency
    “shall . . . maintain[] the administrative record”, id.
    § 231.4(g); and the administrative record “shall consist” of
    specified documents, id. § 231.5(e).          “The Regional
    Administrator shall provide a comment period,” and “[a]ll
    . . . comments shall be considered.” Id. § 231.4(a). If the
    Regional Administrator holds a public hearing, public notice
    “shall be given,” id. § 231.4(b); the notice “shall contain”
    specified information, id. § 231.3(b); the notice “shall . . . be
    published in the Federal Register” and elsewhere, id.
    § 231.3(d); the hearings “shall be” recorded, id. § 231.4(c);
    participants “shall” be afforded “an opportunity for
    rebuttal,” id. § 231.4(d); and an additional comment period
    “shall” be allowed following any hearing, id. § 231.4(f).
    After the conclusion of the public comment period, any
    public hearings, and any post-hearing comment periods, the
    Regional Administrator or his designee “shall” decide
    whether to withdraw the proposed determination or prepare
    a recommended determination. Id. § 231.5(a). If the
    Regional Administrator withdraws the proposed
    determination, then he or she “shall notify” the
    Administrator and all public commenters of the intent to
    withdraw the proposed determination, and the public may
    comment again, this time on whether the Administrator
    should review the decision. Id. § 231.5(c). If the
    Administrator declines to review the decision, the Regional
    Administrator “shall give notice” of the withdrawal in the
    Federal Register, and “[s]uch notice shall constitute final
    agency action.” Id. § 231.5(c)(1).
    28             TROUT UNLIMITED V. PIRZADEH
    In this case, following the two public comment periods,
    the Regional Administrator withdrew the proposed
    determination pursuant to 
    40 C.F.R. § 231.5
    (a). The parties’
    dispute hinges on the proper interpretation of that regulation.
    Plaintiff reads the regulation as requiring the agency to
    withdraw a proposed determination only if a legal standard
    is met: if the discharge of materials is not “likely to have an
    unacceptable adverse effect.” 
    Id.
     The agency reads the
    regulation as carrying forward the permissive, fully
    discretionary regime of 
    40 C.F.R. § 231.3
     that applies to the
    creation of a proposed determination.
    At the outset, we note that, when the EPA promulgated
    the regulation in 1979, it could have chosen either system.
    Had the EPA stated, for example, that the Regional
    Administrator may withdraw a proposed determination for
    any reason or no reason at all, then no meaningful legal
    standard would apply; the decision would be unreviewable
    under the APA; and our analysis would be at an end.
    Similarly, had the EPA stated that the Regional
    Administrator may withdraw a proposed determination only
    if an unacceptable effect is unlikely, then a meaningful legal
    standard would apply; the decision would be reviewable
    under the APA; and our analysis of reviewability would be
    at an end.
    We must assess, of course, the wording that the EPA
    actually chose, which is not entirely clear on the point. The
    dissent’s thoughtful analysis presents one plausible
    interpretation. On balance, however, we conclude that
    Plaintiff’s reading has more support. As discussed below,
    three factors support Plaintiff’s interpretation: the text of the
    regulation, the structure of the regulations as a whole, and
    the agency’s past practice. None of the factors is dispositive
    by itself but, taken together, the factors lead us to conclude
    TROUT UNLIMITED V. PIRZADEH                   29
    that § 231.5(a) directs the Regional Administrator to
    withdraw a proposed determination only if he or she
    determines that an unacceptable adverse effect is not likely.
    We begin with the text of the regulation:
    The Regional Administrator or his designee
    shall, [a specified number of days after the
    expiration of the relevant comment period],
    either withdraw the proposed determination
    or prepare a recommended determination to
    prohibit or withdraw specification, or to
    deny, restrict, or withdraw the use for
    specification, of the disposal site because the
    discharge of dredged or fill material at such
    site would be likely to have an unacceptable
    adverse effect.
    § 231.5(a). Stripped to the essential aspects: The Regional
    Administrator “shall . . . either withdraw the proposed
    determination or prepare a recommended determination . . .
    because the discharge of dredged or fill material at such site
    would be likely to have an unacceptable adverse effect.” Id.
    Read in isolation, a command that “a regulator shall
    either do X or do Y because pollution levels are
    unacceptable” implies that the regulator will do X only if
    pollution levels are acceptable.              The alternative
    interpretation would allow the regulator to do X for any
    reason at all, even if pollution levels are unacceptable. That
    interpretation may be consistent with formal logic because
    the regulator chose to do X—full stop. But the interpretation
    strains how one ordinarily would understand a command of
    that sort. See Synagogue v. United States, 
    482 F.3d 1058
    ,
    1061–62 (9th Cir. 2007) (“We begin with the text of the
    statute, read in its context, and we give undefined terms their
    30               TROUT UNLIMITED V. PIRZADEH
    ordinary meanings.”); see also Mohamad v. Palestinian
    Authority, 
    566 U.S. 449
    , 453 (2012) (declining to read a
    phrase “unnaturally”). Similarly here, the text of the
    regulation implies that the Regional Administrator will
    withdraw a proposed determination only if an unacceptable
    adverse effect is unlikely.
    We emphasize that the inference is not absolute; the text
    of the regulation, by itself, does not definitively answer the
    question.       For example, consider this hypothetical
    regulation: “The official shall either reject the permit
    application or issue the permit because the applicant meets
    the qualifications.” Read in isolation, the sentence implies
    that the rejection or issuance of the permit hinges on whether
    the applicant meets the qualifications. But that inference
    could be rebutted if, for example, the regulations elsewhere
    specify a cap on the number of permits that may issue
    regardless of an applicant’s qualifications. In that scenario,
    if the cap had been reached, the official would comply with
    the literal command of the quoted regulation by rejecting an
    application despite the applicant’s qualifications. In short,
    although a sentence of this form suggests one reading, the
    proper interpretation of such a sentence depends on the
    broader context of the regulation. Here, as we discuss in
    detail below, the broader context confirms our reading of
    
    40 C.F.R. § 231.5
    (a). 5
    5
    For that reason, we are unpersuaded by the dissent’s alternative
    analogy about visiting a movie theater. The dissent’s analogy assumes
    the wrong context by failing to take account of the fact that the relevant
    command pertains to the end of a long process directed to gathering
    pertinent information. Properly contextualized, a relevant analogy
    would be to someone who has stood in line for 30 minutes wondering if
    tickets remained for Citizen Kane. The directive would be: “Once
    you’ve reached the ticket stand, you shall either go home or go to the
    TROUT UNLIMITED V. PIRZADEH                       31
    Here, the overall structure of the regulatory regime
    confirms our interpretation. As described in detail above,
    the regulations use broadly permissive wording when
    describing the Regional Administrator’s actions concerning
    whether to publish notice of a proposed determination. He
    or she retains unfettered discretion—the Regional
    Administrator “may initiate [certain] actions.” 
    Id.
     § 231.3(a)
    (emphasis added).        But as soon as the Regional
    Administrator decides to publish a notice of the proposed
    determination, the regulations then require that the Regional
    Administrator “shall” take many specific actions, including
    a requirement to either withdraw the proposed determination
    or issue a recommended determination. Id. § 231.5(a). Read
    as a whole, then, the regulations strongly suggest that the
    Regional Administrator’s unfettered discretion to act for any
    reason whatsoever expires once, and only if, he or she
    chooses to publish a proposed determination. See, e.g.,
    Lopez v. Davis, 
    531 U.S. 230
    , 241 (2001) (holding that a
    mandatory statutory command had a different meaning than
    nearby permissive commands because “Congress’ use of the
    permissive ‘may’ in [one subsection] contrasts with the
    legislators’ use of a mandatory ‘shall’ in the very same
    section”).
    It is commonplace in the law for an actor’s choice to
    undertake a wholly discretionary course of action to give rise
    to a resulting non-discretionary duty that is governed by a
    manageable legal standard. For example, a person has no
    duty to undertake a rescue but, once a rescue is attempted,
    the rescuer is held to a duty of care. See, e.g., Fowler V.
    Harper, Fleming James, Jr. & Oscar S. Gray, Harper, James
    movies because tickets remain for Citizen Kane.” You could literally
    comply with the command by going home even if tickets are available
    for Citizen Kane, but that is not what the speaker meant.
    32               TROUT UNLIMITED V. PIRZADEH
    and Gray on Torts §18.6 (3d ed. 2021) (“[T]he undertaking
    to rescue, although not required, gives rise to the duty to
    exercise care not to leave the object of the rescue in worse
    condition than if the rescue had not been attempted.”);
    Moloso v. Alaska, 
    644 P.2d 205
    , 212 (Alaska 1982) (“It is
    ancient learning that one who assumes to act, even though
    gratuitously, may thereby become subject to the duty of
    acting carefully.” (internal quotation marks omitted)). The
    same principle applies with equal force in the context of an
    agency’s regulations. For example, in ASSE International,
    803 F.3d at 1069–71, we held that, although the relevant
    agency had full discretion to create—or not—exchange
    visitor programs, the agency’s unfettered discretion ended
    when it chose to create a program; the agency’s regulations
    imposed mandatory, judicially reviewable duties on the
    agency in the administration of an exchange program already
    created.
    We read the regulatory regime here to follow that same
    pattern. The agency chose to retain full discretion (“may
    initiate”) when deciding whether to start the regulatory
    process, and it chose to constrain its discretion (“shall”) after
    its decision to issue a proposed determination and to call for
    public comments specifically on the likelihood of adverse
    effects. 6
    6
    Defendants argue that a different regulation, 
    40 C.F.R. § 231.6
    ,
    supports their interpretation of § 231.5. Section 231.6 describes the
    procedures that the Administrator must follow if he or she chooses to
    review the Regional Administrator’s decision. In particular, § 231.6
    requires the Administrator to “state the reasons for [his or her] final
    determination.” Defendants urge us to conclude that, because § 231.5
    does not contain a similar statement, the agency must have empowered
    the Regional Administrator to act without any reason at all. We disagree.
    Section 231.6 simply paraphrases the statutory text, which requires that
    TROUT UNLIMITED V. PIRZADEH                         33
    Finally, our interpretation is consistent with the agency’s
    past practice. Cf. Mont. Wilderness Ass’n v. McAllister,
    
    666 F.3d 549
    , 556–58 (9th Cir. 2011) (examining an
    interpretation of a statute for consistency with the past
    practice of relevant agencies). In the only previous
    withdrawal of a proposed determination, concerning a
    project to place gravel on tundra wetlands in 1991, the
    Regional Administrator nowhere suggested that her
    authority to withdraw could rest on anything other than a
    conclusion that any effects were likely acceptable. 56 Fed.
    Reg. at 58247. Instead, she explained:
    Region 10 based initiation of 404(c)
    proceedings on its belief that the project
    could have unacceptable adverse impacts on
    wildlife and wildlife habitat. The revised
    project, however, represents a significant
    reduction in scope and is environmentally
    acceptable to EPA for the following [seven]
    reasons [pertaining to effects on the
    environment].
    Id. (emphases added).
    Because there is only one previous withdrawal of a
    proposed determination, we readily acknowledge that this
    factor does not weigh heavily in our analysis. But we also
    “[t]he Administrator shall set forth . . . his reasons for making any
    determination under this subsection.” 
    33 U.S.C. § 1344
    (c). Section
    231.6 makes clear that the Administrator may not silently affirm the
    Regional Administrator’s reasons for invoking § 404(c) but, instead, and
    consistent with the statutory text, must provide his or her own reasons
    for any final determination. The requirement that the Administrator
    provide his or her own reasons does not imply that the Regional
    Administrator may act without reason.
    34            TROUT UNLIMITED V. PIRZADEH
    do not consider past practice entirely irrelevant. The fact
    that the agency’s previous withdrawal was due to its
    reassessment of environmental effects supports our view that
    the regulations contemplate precisely that inquiry.
    For all of those reasons, we conclude that § 231.5(a)
    allows the Regional Administrator to withdraw a proposed
    determination only if the discharge of materials would be
    unlikely to have an unacceptable adverse effect. The agency
    has defined an “unacceptable adverse effect” to encompass
    “significant” effects on specified resources. 
    40 C.F.R. § 231.2
    (e). That legal standard is akin to many other
    standards that we regularly review under the APA. See, e.g.,
    Bair v. Cal. Dept. of Transp., 
    982 F.3d 569
    , 577–81 (9th Cir.
    2020) (reviewing, pursuant to the APA, an agency’s “finding
    of no significant impact” under the National Environmental
    Policy Act of 1969); Helping Hand Tools v. U.S. Env. Prot.
    Agency, 
    848 F.3d 1185
     (9th Cir. 2016) (reviewing, pursuant
    to the APA, the EPA’s granting of a “prevention of
    significant deterioration” permit under the Clean Air Act).
    Nor does judicial review of the EPA’s compliance with
    its own regulations threaten to “infring[e] any of the
    [agency’s] prerogatives under the statute.” ASSE Int’l,
    803 F.3d at 1069. The EPA remains free to consider—or
    not—the suitability of invoking its § 404(c) authority with
    respect to any given geographical area. Both the statute and
    the first steps in the regulations, 
    40 C.F.R. § 231.3
    (a), grant
    the agency unfettered discretion. But once the Regional
    Administrator publishes a proposed determination and
    triggers a public comment period, the agency must, under its
    own regulations, decide what next step to take depending on
    the likelihood of unacceptable effects. As noted above, the
    number of potential geographical areas is effectively
    limitless, and subjecting the EPA to judicial review with
    TROUT UNLIMITED V. PIRZADEH                   35
    respect to every conceivable area could overwhelm the
    agency’s resources. By sharp contrast, the agency has
    withdrawn a proposed determination after its discretionary
    decision to initiate a period of public comment only twice in
    a half-century. See 44 Fed. Reg. at 58079 (predicting,
    accurately, that “EPA does not expect that the 404(c)
    authority will be used very often”). Judicial review in those
    rare instances, the frequency of which remains fully within
    the agency’s control, poses no threat to the agency’s
    statutory prerogatives.
    In conclusion, even though the statute contains a broad
    grant of discretion, the agency’s regulations contain a
    meaningful legal standard governing the Regional
    Administrator’s withdrawal of a proposed determination.
    Accordingly, the decision is subject to judicial review under
    the APA. See, e.g., ASSE Int’l, 803 F.3d at 1069 (holding
    that, although the statute contains no meaningful standard
    constraining the State Department’s discretion, the plaintiff
    “has asked us to measure the State Department’s
    administration of the [program] against the Department’s
    own regulations. This we can do without infringing any of
    the State Department’s prerogatives under the statute.”);
    Alcaraz v. I.N.S., 
    384 F.3d 1150
    , 1161 (9th Cir. 2004)
    (“While [the relevant statute], on its face, gives the Attorney
    General discretion, the Alcarazes’ argument is that this
    discretion has been legally circumscribed by various
    memoranda through which the [agency] implemented its . . .
    policy. Under these circumstances, we find that statute is
    not drawn in such broad terms that there is no law to
    apply.”); Mendez-Gutierrez v. Ashcroft, 
    340 F.3d 865
    , 868
    (9th Cir. 2003) (holding that, even though “no statute or
    regulation specifically govern[ed]” the petitioner’s
    application to the agency, meaningful law nevertheless
    existed because the application was “analogous, at least to
    36            TROUT UNLIMITED V. PIRZADEH
    some degree, to a motion to reopen, which is governed by a
    clear set of rules and regulations”); see also County of
    Esmeralda v. U.S. Dept. of Energy, 
    925 F.2d 1216
    , 1219 (9th
    Cir. 1991) (holding that, although the statute provided no
    express legal standard, we could review the agency’s
    decision because, logically, “a judicially manageable
    standard . . . readily presents itself,” and because we could
    not “see how the purposes of the Act will be endangered by
    judicial review of the type of action at issue here”). This
    case thus differs from precedents in which neither the
    relevant statute nor any regulation provided a meaningful
    legal standard. See, e.g., Menominee Indian Tribe of Wis. v.
    EPA, 
    947 F.3d 1065
    , 1072–73 (7th Cir. 2020) (holding, after
    concluding that the statute contained no meaningful
    standard, that the plaintiff “does not point to any regulations
    governing the [agency’s decision]. We searched too and
    came up empty, finding no statute, regulation, or guideline
    [on point].”); City and County of San Francisco, 796 F.3d at
    1002–03 (holding that the statute contained no meaningful
    standard and not mentioning any pertinent regulation); Pac.
    Gas & Elec. Co. v. FERC, 
    464 F.3d 861
    , 867 (9th Cir. 2006)
    (same); Sierra Club v. Whitman, 
    268 F.3d 898
    , 902–05 (9th
    Cir. 2001) (same); Alaska Fish & Wildlife Fed’n v. Dunkle,
    
    829 F.2d 933
    , 938 (9th Cir. 1987) (same). Nor do we hold
    that a permissive standard that applies to one type of decision
    necessarily applies equally (and in reverse) to an opposite
    decision, Bear Valley, 790 F.3d at 989; instead, we hold that
    the agency intended the mandatory legal standard to apply
    specifically and directly to decisions to withdraw a proposed
    determination.
    We hasten to add that the Regional Administrator retains
    significant discretion—of the ordinary variety—when
    making a determination under § 231.5(a). Reviewability
    does not mean that the agency has no discretion at all. ASSE
    TROUT UNLIMITED V. PIRZADEH                 37
    Int’l, 803 F.3d at 1071. Whether “unacceptable” adverse
    effects are “likely” is a flexible standard that draws
    considerably on the agency’s expertise and judgment. Cf.
    44 Fed. Reg. at 58078 (“[W]hat is required is a reasonable
    likelihood that unacceptable adverse effects will occur—not
    absolute certainty but more than mere guesswork.”). On
    remand, the district court must accord “the proper
    deference” to the agency’s decision on the merits when
    applying the APA’s standards of review. ASSE Int’l,
    803 F.3d at 1071.
    We briefly offer several observations in response to the
    dissent’s speculation of potential policy implications of our
    decision. Dissent at 54–56. As an initial matter, we are
    tasked with deciding the legal question before us: Is the
    agency’s action reviewable? Policy implications play no
    role in that analysis. Whatever the policy implications may
    be from our decision, those implications do not influence
    whether or not the agency’s withdrawal here is reviewable.
    The dissent also appears to conflate reviewability with a
    particular outcome. We repeat what we stated before:
    nothing in our opinion affects whether the agency’s
    withdrawal here violated the APA. In particular, nothing in
    our decision speaks to the factors that are relevant when
    assessing the likelihood of unacceptable effects. In cases in
    which the agency acts after a permit has been issued and the
    discharge of materials has begun, such as in Mingo Logan
    Coal Co., 714 F.3d at 610–11, the likelihood of unacceptable
    effects almost certainly hinges solely on a technical or
    scientific judgment about the effects of the discharge. But
    in cases in which the agency acts before a permit has been
    issued, the likelihood of unacceptable effects also could
    depend on the Regional Administrator’s prediction as to the
    scope of any permit that the Corps would approve. That
    38            TROUT UNLIMITED V. PIRZADEH
    assessment, in turn, could rest on the EPA’s predicted ability
    to influence the permitting process to avoid an unacceptable
    effect, for example, because of procedural protections that
    the Corps has afforded to the EPA. Nothing in our opinion
    addresses whether the Regional Administrator must assess
    stale technical data in the face of a revised permit
    application, or whether he or she must disregard any
    pertinent procedures that bind the relevant agencies. We
    leave the merits determination solely for the district court’s
    analysis on remand.
    Finally, we are doubly puzzled by the dissent’s hand-
    wringing about the agency’s being hamstrung by an earlier
    action by that agency under a different administration.
    Agencies take action all the time, for instance by issuing
    final rules, that bind the agency for the future, regardless of
    a change in philosophy or personnel. Moreover, our holding
    that courts may review a withdrawal of a proposed
    determination rests entirely on our interpretation of the
    agency’s regulation. If the EPA disapproves of our
    interpretation of § 231.5(a), it is free to change the rule
    through ordinary rule-making. As noted above, if the
    regulation granted unfettered discretion to the Regional
    Administrator to withdraw a proposed determination, then
    the decision would be unreviewable under the APA.
    B. Decision Not to Take Enforcement Action
    Defendants argue, in the alternative, that the withdrawal
    of the proposed determination here is best characterized as
    an agency’s decision not to take enforcement action. An
    agency’s decision not to take enforcement action is
    presumptively unreviewable, but that presumption may be
    overcome if a meaningful legal standard constrains the
    agency’s discretion. Heckler, 
    470 U.S. at
    831–33. Because
    we have concluded that the agency’s implementing
    TROUT UNLIMITED V. PIRZADEH                  39
    regulations clearly contain a meaningful legal standard,
    regardless of the presumption of reviewability or
    unreviewability, our decision does not turn on the proper
    characterization of the agency’s action.
    In any event, with respect to Plaintiff’s challenge to the
    agency’s compliance with its regulations, the agency’s
    decision is not properly characterized as a decision not to
    take enforcement action. See City and County of San
    Francisco, 796 F.3d at 1001–02 (summarizing the factors
    that determine how to characterize an agency’s action). The
    Regional Administrator must base his or her withdrawal
    decision on the likelihood of unacceptable effects, not on
    “allocation of resources” or on “agency policies and
    priorities.” Id. at 1002. Unlike ordinary non-enforcement
    actions, the agency’s withdrawal here has a real-world legal
    effect of removing the prohibition on the Corps’ authority to
    issue a permit. Id.; 
    33 C.F.R. § 323.6
    (b); 
    40 C.F.R. § 231.3
    (a)(2).      Finally, withdrawal of a proposed
    determination is not akin to the exercise of “prosecutorial
    discretion, an arena in which courts have traditionally not
    interfered.” City and County of San Francisco, 796 F.3d
    at 1002. Unlike the private, discretion-laden charging
    decisions made by a prosecutor, the EPA’s withdrawal of a
    proposed determination is the culmination of reasoned,
    public decisionmaking, following a formal period of public
    comment and hearings.
    AFFIRMED in part, REVERSED in part, AND
    REMANDED. The parties shall bear their own costs on
    appeal.
    40            TROUT UNLIMITED V. PIRZADEH
    BRESS, Circuit Judge, dissenting:
    Sometimes there really is just no law to apply. In
    administrative law, there is nothing for courts to do when
    “agency action is committed to agency discretion by law.”
    
    5 U.S.C. § 701
    (a)(2). That venerable principle should have
    easily answered this case. Yet from a Clean Water Act
    scheme that the majority concedes gives EPA unfettered
    discretion, our court purports to discover a judicially
    enforceable standard for reviewing EPA’s decision to
    withdraw an initial exploratory determination—which is
    itself merely an early-stage decision to cease pursuing a
    purely discretionary enforcement mechanism.
    The majority opinion turns on a serious misreading of the
    governing regulations, rewriting the rules that EPA set for
    itself and inserting courts into what was supposed to be the
    preliminary stages of a discretionary agency review process.
    Though the mine at the center of this case is a source of great
    public controversy, the administrative law question here
    should have been straightforward. The agency’s withdrawal
    from its discretionary exploratory process is not subject to
    judicial review. I thus respectfully dissent.
    I
    The Administrative Procedure Act, we all agree,
    “embodies a ‘basic presumption of judicial review.’” Dep’t
    of Com. v. New York, 
    139 S. Ct. 2551
    , 2567 (2019) (quoting
    Abbott Laboratories v. Gardner, 
    387 U.S. 136
    , 140 (1967)).
    But “[t]his is just a presumption.” Lincoln v. Vigil, 
    508 U.S. 182
    , 190 (1993) (quotations omitted). It is rebutted when
    “agency action is committed to agency discretion by law.”
    
    5 U.S.C. § 701
    (a)(2).
    TROUT UNLIMITED V. PIRZADEH                 41
    The classic example of such discretionary action is “an
    agency’s decision not to institute enforcement proceedings.”
    Lincoln, 
    508 U.S. at 191
    . That type of agency decision is in
    fact “presumptively unreviewable.” Heckler v. Chaney,
    
    470 U.S. 821
    , 832 (1985) (emphasis added). But more
    broadly, § 701(a)(2) precludes judicial review “if no
    judicially manageable standards are available for judging
    how and when an agency should exercise its discretion.” Id.
    at 830. In that situation, we lack jurisdiction to review the
    agency’s decision. See, e.g., Alcaraz v. INS, 
    384 F.3d 1150
    ,
    1161 (9th Cir. 2004) (“Under the Administrative Procedure
    Act, we lack jurisdiction to review agency actions that are
    committed to agency discretion by law.” (quotations
    omitted)).
    No one doubts that § 701(a)(2) is a “narrow exception”
    to our usual ability to review final agency actions. City &
    County of S.F. v. U.S. Dep’t of Transp., 
    796 F.3d 993
    , 1002
    (9th Cir. 2015) (quotations omitted). But nor is that
    exception without import or content, either. There are
    numerous cases in which the Supreme Court and our court
    (to say nothing of other courts) have deemed agency action
    unreviewable because it was committed to the agency’s
    discretion. See, e.g., Lincoln, 
    508 U.S. at 184, 193
    ; Webster
    v. Doe, 
    486 U.S. 592
    , 600–01 (1988); Heckler, 
    470 U.S. at
    836–38; Int’l Bhd. of Teamsters v. U.S. Dep’t of Transp.,
    
    861 F.3d 944
    , 953–54 (9th Cir. 2017); City & County of S.F.,
    796 F.3d at 1002; Bldg. Indus. Ass’n of the Bay Area v. U.S.
    Dep’t of Com., 
    792 F.3d 1027
    , 1035 (9th Cir. 2015); Bear
    Valley Mut. Water Co. v. Jewell, 
    790 F.3d 977
    , 989–90 (9th
    Cir. 2015); Ctr. for Policy Analysis on Trade & Health
    (CPATH) v. Off. of U.S. Trade Representative, 
    540 F.3d 940
    ,
    946–47 (9th Cir. 2008), as amended (Oct. 8, 2008); Pac. Gas
    & Elec. Co. v. FERC, 
    464 F.3d 861
    , 867 (9th Cir. 2006);
    Sierra Club v. Whitman, 
    268 F.3d 898
    , 903–05 (9th Cir.
    42            TROUT UNLIMITED V. PIRZADEH
    2001); Helgeson v. Bureau of Indian Affs., Dep’t of Interior,
    
    153 F.3d 1000
    , 1003 (9th Cir. 1998).
    The case before us should have made a fine addition to
    this string citation.
    A
    The Clean Water Act generally prohibits the discharge
    of dredged or fill materials into navigable waters without a
    permit. 
    33 U.S.C. §§ 1311
    (a), 1344(a). This case centers on
    § 404 of the Act, which concerns the permitting process. Id.
    § 1344. The Army Corps of Engineers is responsible for
    issuing permits for specified disposal sites, known as
    “specifications.” Id. § 1344(a)–(b), (d).
    For our purposes, the key provision of the Act is
    § 404(c), which provides that the EPA Administrator “is
    authorized” to prohibit, deny, or restrict a specification
    “whenever he determines” that the discharge of materials
    “will have an unacceptable adverse effect” on the water or
    surrounding wildlife. Id. § 1344(c). The question presented
    here is whether courts can review EPA’s decision to
    withdraw a proposed determination to further explore using
    its discretionary § 404(c) powers. The answer is clearly no.
    My fine colleagues in the majority readily agree that
    EPA’s decision to initiate the § 404(c) process is fully
    discretionary, contains no meaningful legal standard, and is
    therefore not subject to judicial review. That is entirely
    correct given the statute’s permissive language. Indeed,
    EPA’s decision not to proceed with a § 404(c) review looks
    exactly like a traditionally unreviewable non-enforcement
    decision. See Heckler, 
    470 U.S. at
    832–33. It involves the
    classic balancing of policy considerations—cost-benefit
    analyses, agency priorities, and allocation of governmental
    TROUT UNLIMITED V. PIRZADEH                   43
    resources—that commonly exceed judicial review. See City
    & County of S.F., 796 F.3d at 1001–02; Pacific Gas & Elec.,
    
    464 F.3d at 867
    . The majority thus forthrightly “agree[s]
    with the majority of courts that have held that plaintiffs may
    not bring statutory challenges to the Administrator’s
    decision not to invoke § 404(c).”
    EPA’s implementing regulations unsurprisingly have the
    same discretionary cast as the statute they serve. Under
    
    40 C.F.R. § 231.3
    (a), “[i]f the Regional [EPA]
    Administrator has reason to believe . . . that an ‘unacceptable
    adverse effect’ could result from the specification” of a
    disposal site, he “may initiate” certain sequential actions.
    The Regional Administrator will notify interested parties
    that he “intends to issue a public notice of a proposed
    determination” to prohibit or restrict the specification. 
    Id.
    § 231.3(a)(1) (emphasis added). And if within 15 days of
    the notice “it has not been demonstrated to the satisfaction
    of the Regional Administrator that no unacceptable adverse
    effect(s) will occur,” or that corrective action will be taken,
    the Regional Administrator “shall publish notice of a
    proposed determination in accordance with the procedures
    of this section.” Id. § 231.3(a)(2) (emphasis added).
    A “proposed determination” merely reflects the initial
    stage of a potential § 404(c) prohibition that EPA might
    decide to issue later down the road, should the § 404(c)
    process run its full course. As EPA explained in the
    preamble to its § 404(c) regulations, “a proposed
    determination does not represent a judgment that discharge
    of dredged or fill material will result in unacceptable adverse
    effects; it merely means that the Regional Administrator
    believes that the issue should be explored.” Denial or
    Restriction of Disposal Sites; Section 404(c) Procedures,
    
    44 Fed. Reg. 58,076
    , 58,082 (Oct. 9, 1979).
    44            TROUT UNLIMITED V. PIRZADEH
    When it comes to initiating the “proposed
    determination” process under the regulations, we thus again
    find agency action committed to the agency’s discretion.
    The majority concedes this same point. The majority
    opinion recognizes that 
    40 C.F.R. § 231.3
     “tracks the
    statute’s permissive terminology,” so that “[t]his step in the
    regulatory process thus retains the agency’s unfettered
    discretion.” The majority then correctly concludes that there
    is “no meaningful legal standard that constrains the Regional
    Administrator’s determinations not to take action under
    § 231.3.” For the same reasons explained as to the statute
    itself, § 231.3’s permissive language and the balancing of
    agency priorities it reflects make the Regional
    Administrator’s decision whether to proceed with a
    proposed determination the very type of quasi-enforcement
    decision that is committed to the agency’s discretion.
    Once the Regional Administrator decides to publish
    notice of a proposed determination, however, he must follow
    certain procedures for public notice in 
    40 C.F.R. § 231.3
    (b)–
    (d). He must also provide a public comment period and
    permit comments “directed to whether the proposed
    determination should become the final determination and
    corrective action that could be taken to reduce the adverse
    impact of the discharge.” 
    Id.
     § 231.4(a). The regulations set
    out further guidelines for when the Regional Administrator
    should hold public hearings on the issue and the procedures
    that govern those hearings. Id. § 231.4(b)–(g).
    Once the public comment period has concluded, the
    Regional Administrator must act within certain time frames
    to either “withdraw” his proposed determination or to move
    forward with preparing a “recommended determination” to
    prohibit or limit the specification. Id. § 231.5(a). When the
    decision is to withdraw the proposed determination, the
    TROUT UNLIMITED V. PIRZADEH                  45
    Regional Administrator must notify the EPA Administrator
    (i.e., the Regional Administrator’s boss), who may decide to
    review the withdrawal. Id. § 231.5(c)(2). If the Regional
    Administrator withdraws the proposed recommendation and
    the Administrator elects not to review it, the process ends.
    Id. § 231.5(c)(1). If, however, the Regional Administrator
    prepares a “recommended determination” to prohibit or limit
    the specification, the Administrator must then review that.
    Id. §§ 231.5(a)–(b), 231.6. That can, in turn, lead to a final
    decision by the Administrator that prohibits or limits the
    specification, id. § 231.6—the ultimate exercise of EPA’s
    § 404(c) power.
    In the case before us, and before any permit application
    for the Pebble Mine had even been submitted, the Regional
    Administrator in 2014 issued a “proposed determination” on
    the Pebble Mine and followed the required procedures for
    public notice and comment. But in 2019, he then decided to
    “withdraw” the proposed determination, concluding that
    based on “the passage of time, the submittal of a permit
    application, and a significant expansion of the record, [the
    proposed determination] has effectively grown stale.”
    
    84 Fed. Reg. 45,749
    , 45,753 (Aug. 30, 2019).
    In particular, the Regional Administrator pointed to at
    least six significant differences between the anticipated
    mining proposal that EPA had evaluated in 2014 in issuing
    its proposed determination, and the project’s then-current
    proposal in 2019. 
    Id.
     The Regional Administrator
    determined that “it is more appropriate to use well-
    established mechanisms to raise project-specific issues as
    the record develops during the permitting process and
    consider the full record before potential future decision-
    making on this matter, instead of maintaining a section
    404(c) process that is now five years old and does not
    46            TROUT UNLIMITED V. PIRZADEH
    account for the voluminous information provided in the
    permitting process.” 
    Id.
     Nevertheless, the Regional
    Administrator reserved the right to initiate “a new section
    404(c) process that is informed by the entirety of the facts
    and the Corps’ decision-making known to the Agency.” 
    Id. at 45,755
    .
    The EPA Administrator then declined to review the
    withdrawal—which plaintiff Trout Unlimited now claims is
    subject to judicial review.
    B
    One would have thought that in the context of purely
    discretionary statutory authority to launch the § 404(c)
    process and EPA implementing regulations that give the
    Regional Administrator unreviewable discretion whether to
    initiate the “proposed determination” exploratory
    mechanism, a decision to withdraw a proposed
    determination would also be committed to the agency’s
    discretion. Alas, we learn today that is not true.
    According to the majority, there is a judicially
    manageable standard to review that action, which is
    effectively a refusal to act. We are told that standard is to be
    found in 
    40 C.F.R. § 231.5
    (a), which provides:
    The Regional Administrator or his designee
    shall [within specified time periods] . . .
    either withdraw the proposed determination
    or prepare a recommended determination to
    prohibit or withdraw specification, or to
    deny, restrict, or withdraw the use for
    specification, of the disposal site because the
    discharge of dredged or fill material at such
    TROUT UNLIMITED V. PIRZADEH                   47
    site would be likely to have an unacceptable
    adverse effect.
    
    Id.
     This provision indicates that the Regional Administrator
    may move forward with a “recommended determination”
    based on the finding that the discharge of material “would
    be likely to have an unacceptable adverse effect.” 
    Id.
     But
    the majority concludes that a withdrawal of a proposed
    determination nevertheless requires the Regional
    Administrator to determine that a specification is not likely
    to have an unacceptable adverse effect.
    The majority’s twisted inversion of the regulation is
    clearly wrong. The “unacceptable adverse effect” standard
    applies if the Regional Administrator decides to prepare a
    recommended determination to prohibit or restrict a
    specification. The regulation makes clear that this is the only
    permissible basis for taking such an action toward stopping
    or limiting a specification—even as nothing in the regulation
    requires the agency to take that action, either.
    But the regulation obviously does not say, as the majority
    nevertheless holds, that the Regional Administrator can only
    withdraw a proposed determination based on the opposite
    finding of “no unacceptable adverse effect.” The regulation
    provides no standards whatsoever for such a decision to pull
    back. And it thus places no judicially enforceable limits on
    the Regional Administrator’s ability to withdraw. 
    5 U.S.C. § 701
    (a)(2); Heckler, 
    470 U.S. at 830
    . The majority has
    invented a legal standard that does not exist in the statute or
    regulations.
    The majority’s analysis in reaching that result is deeply
    flawed. The majority opinion reasons that “[a] command
    that ‘a regulator shall either do X or do Y because pollution
    levels are unacceptable’ implies that the regulator will do X
    48              TROUT UNLIMITED V. PIRZADEH
    only if pollution levels are acceptable.” This is a highly
    precarious proposition on its face, and it finds no support in
    language, logic, or law. In fact, we refused to credit a
    substantially similar mirror image argument in Bear Valley
    Mutual Water Co. v. Jewell, 
    790 F.3d 977
     (9th Cir. 2015),
    rejecting as “unavailing” the claim that “if there is a
    manageable standard to review an agency’s decision to
    exclude, . . . the same standard can, and should be, used to
    review an agency’s decision not to exclude.” 
    Id. at 989
    .
    The majority’s stylized rendering of the regulation—”do
    X or do Y because pollution levels are unacceptable”—also
    fails to account for the nature of the agency decision before
    us. The “X” here is a decision to pull back, i.e., to not
    proceed with something. If I say, “you shall either not go to
    the movies or go to the movies because Citizen Kane is
    showing,” you would violate my directive if you went to the
    movies to see Sunset Boulevard. But you may of course
    decide not to go to the movies for any reason; I have placed
    no limits on your discretion. Certainly, nothing about my
    instructions would suggest you may not go to the movies
    only if Citizen Kane is not showing. 1
    1
    The majority claims that the more “relevant analogy would be to
    someone who has stood in line for 30 minutes wondering if tickets
    remained for Citizen Kane,” so that, in its view, the more comparable
    directive would be: “Once you’ve reached the ticket stand, you shall
    either go home or go to the movies because tickets remain for Citizen
    Kane.” This little debate underscores as much as anything how far the
    majority has reimagined the regulatory text. The majority’s reworked
    Citizen Kane hypothetical simply bakes in its conclusion, namely, that
    the presumptive point of the proposed determination process is to move
    forward with a recommended determination absent a particular finding.
    Unlike the majority’s hypothetical of a moviegoer waiting in line—who
    obviously has a dedicated objective of seeing the movie—the proposed
    determination process is exploratory in nature and embodies no such
    TROUT UNLIMITED V. PIRZADEH                       49
    The majority asserts that my position, while concededly
    “consistent with formal logic,” “strains how one ordinarily
    would understand a command” like the one in 
    40 C.F.R. § 231.5
    (a). But I am at a loss to understand how the majority
    can say this, as the language and logic work together.
    Section 231.5(a) imposes a condition for the agency if it
    wants to move forward, but no condition for stopping the
    process. The Regional Administrator “shall . . . either
    withdraw the proposed determination or prepare a
    recommended determination because the discharge of
    dredged or fill material at such site would be likely to have
    an unacceptable adverse effect.” 
    40 C.F.R. § 231.5
    (a). This
    certainly does not “impl[y],” as the majority holds, “that the
    Regional Administrator will withdraw a proposed
    determination only if an unacceptable adverse effect is
    unlikely.” (Emphasis added.) That untenable interpretation
    should be equally unpalatable to the logician and linguist
    alike.
    Of course, not even the majority is willing fully to
    embrace its own inside-out theory of judicially manageable
    standards, which would conflict with our decision in Bear
    Valley. The majority thus quickly cautions that the inverted
    inference it draws from the regulatory text “is not absolute”
    because “the proper interpretation of such a sentence
    depends on the broader context of the regulation.” I of
    course agree we should interpret regulatory text in context.
    But the context plainly supports the government.
    foreordained objective. That explains why under the regulation as
    written, no legal standard governs the agency’s ability to withdraw a
    proposed determination, and why the agency need not initiate the
    § 404(c) process at all.
    50            TROUT UNLIMITED V. PIRZADEH
    As the majority itself holds, the decision to withdraw a
    proposed determination takes place in the context of EPA’s
    wholly discretionary (and thus unreviewable) decision to
    initiate the § 404(c) process, and wholly discretionary (and,
    again, unreviewable) decision to initiate the “proposed
    determination” sub-process. Nothing about this overall
    framework suggests that a decision to abandon an
    exploratory first stage in the process should suddenly be
    subject to judicial oversight. The majority implies it would
    be a scandal if the Regional Administrator could withdraw a
    proposed determination “for any reason at all.” But that
    discretion is entirely consistent with what the majority
    acknowledges is the “unfettered discretion” that otherwise
    pervades the entire § 404(c) scheme.
    Absent a judicially manageable standard, as here, a
    decision to withdraw a proposed determination, no less than
    a decision to initiate one, involves the “complicated
    balancing of a number of factors which are peculiarly within
    [the agency’s] expertise, such as allocation of resources and
    agency policies and priorities.” City & County of S.F.,
    796 F.3d at 1001–02 (quotations omitted).              EPA’s
    withdrawal decision in this case—which cited changed
    circumstances, the ability to use other regulatory devices,
    and a desire to reconsider the matter based on a more
    accurate record, 
    84 Fed. Reg. 45,753
    –55—reflects typical
    reasoning that agencies employ in setting prerogatives.
    EPA’s withdrawal decision may have been lousy,
    prudent, or somewhere in between. But there is no legal
    standard in the statute or regulations by which to form that
    judgment. See Menominee Indian Tribe of Wis. v. EPA,
    
    947 F.3d 1065
    , 1073 (7th Cir. 2020) (concluding in the
    context of a similar Clean Water Act scheme that “in the
    absence of any regulation addressing the basis for the
    TROUT UNLIMITED V. PIRZADEH                 51
    decision to withdraw an objection, the choice is as
    committed to the agency’s discretion as the decision to
    object in the first instance”). It is a strange world indeed
    when an agency’s withdrawal of an exploratory effort to
    consider a purely discretionary enforcement decision turns
    out to be agency action that is not “committed to agency
    discretion by law.” 
    5 U.S.C. § 701
    (a)(2).
    C
    Given the overall scheme, it follows that the majority
    errs in concluding that the “broader context of the
    regulation” somehow supports its effort to wring from the
    regulation a legal standard it does not contain. The majority
    opinion reasons that “as soon as the Regional Administrator
    decides to publish a notice of the proposed determination,
    the regulations then require that the Regional Administrator
    ‘shall’ take many specific actions, including a requirement
    to either withdraw the proposed determination or issue a
    recommended determination.” From this the majority
    deduces that “the regulations strongly suggest that the
    Regional Administrator’s unfettered discretion to act for any
    reason whatsoever expires once, and only if, he or she
    chooses to publish a proposed determination.”
    The majority’s conclusion does not follow. Once the
    Regional Administrator publishes a notice of proposed
    determination, there are indeed requirements that then apply.
    See 
    40 C.F.R. §§ 231.3
    (b)–(d), 231.4.             But those
    requirements are entirely procedural (and there is no
    suggestion that EPA here failed to follow them). That an
    agency’s discretionary decision-making process is subject to
    mandatory procedural rules says nothing about whether
    there is a substantive, judicially manageable standard by
    which to evaluate agency action.
    52               TROUT UNLIMITED V. PIRZADEH
    Indeed, we have never held that procedural requirements
    have any necessary bearing on whether an agency’s
    substantive decision is reviewable.        In International
    Brotherhood of Teamsters v. U.S. Dep’t of Transportation,
    
    861 F.3d 944
     (9th Cir. 2017), for example, the agency was
    required to conduct a pilot program before issuing certain
    long-haul trucking permits. 
    Id. at 953
    . The pilot program
    was subject to a slew of procedural requirements. 
    Id.
     Yet
    we held that the statute “provides ‘no meaningful standard
    against which to judge the agency’s exercise of discretion’
    in interpreting the data generated through the pilot program
    and granting long-haul operating permits.” 
    Id. at 954
    (quoting Heckler, 
    470 U.S. at 830
    ).
    Citing no authority (I do not count the highly inapposite
    discussion of the common law duty to rescue), the majority
    has merely taken the entirely commonplace situation of
    procedural rules that govern otherwise discretionary agency
    decision-making, and then bootstrapped those rules into
    support for a non-existent judicially manageable substantive
    standard. The careful reader should thus not be taken in by
    the majority’s discourse on the use of word “shall” in
    
    40 C.F.R. § 231.5
    . The regulations use the word “shall” to
    denote mandatory procedural obligations. “Shall” does no
    more work than this. The requirement that the Regional
    Administrator shall make a decision within a certain amount
    of time says nothing about the basis by which he should
    make that decision. 2
    2
    The majority therefore seriously errs in suggesting that ASSE Int’l,
    Inc. v. Kerry, 
    803 F.3d 1059
     (9th Cir. 2015), supports some broader
    “principle,” apparently analogous to the common law duty to rescue,
    under which a decision to undertake a discretionary action then
    necessarily triggers a judicially manageable standard. In ASSE,
    TROUT UNLIMITED V. PIRZADEH                           53
    The majority makes a similar error of law in relying on
    another contextual feature of the § 404(c) regulations, which
    is that “the relevant command pertains to the end of a long
    process directed to gathering pertinent information.” Once
    again, the majority provides no legal support for the
    suggestion that public comment periods or an information-
    gathering process inform whether there exists a judicially
    reviewable legal standard. As with procedural rules that
    govern the timing of otherwise discretionary decisions,
    public comment periods are ubiquitous in agency
    regulations. But courts have routinely held that agency
    action was committed to agency discretion notwithstanding
    the substantial information-gathering processes that may
    precede them. See, e.g., Ass’n of Irritated Residents v. EPA,
    
    494 F.3d 1027
    , 1029, 1031–33 (D.C. Cir. 2007); Bear
    Valley, 790 F.3d at 985, 989–90.
    Finally, the majority errs in claiming that its
    interpretation is “consistent with the agency’s past practice.”
    The “past practice” referenced here is nothing of the sort, as
    the majority effectively recognizes by “readily
    acknowledg[ing] that this factor does not weigh heavily in
    [its] analysis.” As the majority concedes, EPA has
    withdrawn a proposed determination only one other time—
    regulations permitted the agency to issue a sanctions order if it made one
    of four substantive findings. Id. at 1071. The agency issued such an
    order, and the aggrieved party challenged that decision. Id. ASSE was a
    standard-issue decision in this area of administrative law. It is therefore
    unsurprising that the regulations at issue in ASSE—which contained
    defined legal standards—are in no way comparable to the regulations at
    issue here, which lack any standard for the withdrawal of an exploratory
    proposed determination. ASSE would be analogous if EPA issued a
    § 404(c) determination prohibiting a dredging project, see 
    33 U.S.C. § 1344
    ; 
    40 C.F.R. § 231.6
    , and the regulated entity had challenged that
    decision. But that is not this case.
    54            TROUT UNLIMITED V. PIRZADEH
    in 1991. And while in that case the Regional Administrator
    determined that withdrawal was appropriate because the
    reduced scope of the project mitigated the environmental
    effects, the agency in that one instance certainly did not take
    the position that a withdrawal could be justified only on that
    basis. See 
    56 Fed. Reg. 58,247
    , 58,247 (Nov. 18, 1991).
    So, we are left with this: an improper textual inference
    that is “not absolute” plus past agency practice that “does not
    weigh heavily in our analysis” plus “contextual” features
    (like mandatory procedural rules) that commonly
    accompany discretionary agency decision-making somehow
    produce a legal standard capable of judicial review. That is
    quite mistaken. There is nothing in the statute, regulations,
    or past agency practice that creates a judicially manageable
    standard for evaluating EPA’s decision to withdraw a
    proposed determination under 
    40 C.F.R. § 231.5
    (a). In
    concluding otherwise, the majority has imposed a legal
    standard that neither Congress nor EPA saw fit to enact.
    II
    And to what end? The incentives that today’s decision
    creates are troubling to say the least. Contrary to the evident
    balance struck in the statute and implementing regulations,
    the court’s decision today will vastly increase the costs of
    EPA initiating the § 404(c) process. And that inevitable
    consequence is likely, over time, to earn the disdain of those
    on all sides of the push and pull between environmental
    protection and commercial development.
    We can imagine how this will play out. An EPA that is
    more inclined toward environmental protection will now
    find it strategically beneficial to more frequently initiate the
    § 404(c) proposed determination process. Doing so will
    allow it to bind future EPAs that may be more favorable to
    TROUT UNLIMITED V. PIRZADEH                           55
    industry, and that, under today’s decision, will now need to
    show a likelihood of “no adverse environmental effects” to
    get out from under the proposed determinations of their
    predecessors. 3
    Conversely, an EPA that is more solicitous of
    commercial development will now be less likely to initiate
    the proposed determination process, when such a decision
    cannot be as easily undone. Before today’s decision, such
    an EPA might have found the proposed determination
    process attractive because it could allow tentative
    exploration, without commitment, into whether a
    specification could cause undue environmental harm. An
    EPA with that orientation could also use the proposed
    determination device as leverage to achieve more limited
    changes in a specification, without the “sledgehammer”
    option of a full § 404(c) prohibition. But now the proposed
    determination exploratory process comes with a serious
    dilemma: it can only be withdrawn based on a finding of a
    lack of environmental harm—a finding that, if EPA makes
    it, is sure to tie the agency up in years of ancillary litigation.
    This case proves that point. EPA issued its proposed
    determination here in 2014. After many intervening events
    and changes to the Pebble Mine proposal, EPA withdrew its
    proposed determination in 2019. Now, in 2021, and after yet
    further developments involving the mine project in the
    nearly two years since, EPA is now told that its 2019
    withdrawal was proper only if it could be explained on the
    ground that the discharge of materials would be unlikely to
    3
    The majority notes that an agency can also bind its successors by
    issuing final rules. But promulgating a final rule is a substantial, costly
    undertaking, whereas issuing a notice of a proposed determination is an
    exploratory action that can be initiated with far less cost and process.
    56            TROUT UNLIMITED V. PIRZADEH
    have an unacceptable adverse effect. A considerable amount
    of agency and judicial resources have been (and will be)
    devoted to what is ultimately EPA’s decision not to exercise
    a discretionary power.
    The majority’s confusing discussion of what the district
    court and agency are supposed to do on remand only
    compounds the problem. The majority maintains that
    “nothing in our opinion affects whether the agency’s
    withdrawal here violated the APA.” That statement is
    difficult to comprehend when the EPA did not base its
    withdrawal decision on the likelihood of no adverse
    unacceptable adverse environmental effects, which is the
    legal standard we are told applies here. To the extent the
    majority is now suggesting that EPA could still consider
    other factors (like “procedural protections”), the majority
    has only muddied the legal standard it created. All that is
    guaranteed here is further litigation over the meaning of
    today’s decision and the obligations it imposes.
    Those who wish to stop developments like the Pebble
    Mine will no doubt applaud this result. But that constituency
    will surely be displeased when an EPA less inclined toward
    their views decides that initiating the otherwise discretionary
    § 404(c) process now comes at too great a price. The
    majority’s opinion can thus only result in greater extremism
    in environmental policy. Our political branches could of
    course choose that path for themselves. But it was not for us
    to impose it on them.
    The agency withdrawal decision here was clearly agency
    action “committed to agency discretion by law.” 
    5 U.S.C. § 701
    (a)(2). Our court errs in holding otherwise. I
    respectfully dissent.
    

Document Info

Docket Number: 20-35504

Filed Date: 6/17/2021

Precedential Status: Precedential

Modified Date: 6/17/2021

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