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«No. 15-290 In the Supreme Court of the United States Ë UNITED STATES ARMY CORPS OF ENGINEERS, Petitioner, v. HAWKES CO, INC., et al., Respondents. ...»

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No. 15-290

In the

Supreme Court of the United States





HAWKES CO, INC., et al.,



On Writ of Certiorari

to the United States Court of Appeals

for the Eighth Circuit





GREGORY R. MERZ Counsel of Record Of Counsel Pacific Legal Foundation Gray Plant Mooty 930 G Street 500 IDS Center Sacramento, CA 95814 80 South Eighth Street Telephone: (916) 419-7111 Minneapolis, MN 55402 Facsimile: (916) 419-7747 Telephone: (612) 632-3029 mrh@pacificlegal.org MARK MILLER Pacific Legal Foundation 8645 N. Military Trail, Ste. 511 Palm Beach Gardens, FL 33410 Telephone: (561) 691-5000 mm@pacificlegal.org Counsel for Respondents i


Is a Jurisdictional Determination, that is conclusive as to federal jurisdiction under the Clean Water Act, and binding on all parties, subject to judicial review under the Administrative Procedure Act?

ii THE PARTIES Petitioner is the United States Army Corps of Engineers.

Respondents are Hawkes Co., Inc.; LPF Properties, LLC; and Pierce Investment Company.



Respondents have no parent corporations and no publicly held company owns 10% or more of the stock.



Page QUESTION PRESENTED.................... i THE PARTIES............................. ii CORPORATE DISCLOSURE STATEMENT..... ii TABLE OF AUTHORITIES.................. vi OPINIONS BELOW......................... 1 JURISDICTION............................ 1 STATEMENT OF THE CASE................. 1 STATEMENT OF FACTS..................... 8 SUMMARY OF THE ARGUMENT............ 15 ARGUMENT.............................. 18



AGENCY ACTION..................... 18 A. An Approved Jurisdictional Determination Is the Corps’

–  –  –


The opinion of the Eighth Circuit Court of Appeals (Pet. App. at 1a-21a), is reported at 782 F.3d 994. The opinion of the district court (Pet. App. at 22a-43a), is reported at 963 F. Supp. 2d 868.


The court of appeals entered its judgment on April 10, 2015. The court of appeals denied the United States Army Corps of Engineers’ petition for rehearing on July 7, 2015 (Pet. App.103a-104a). The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).


The Legal Background The Clean Water Act authorizes the Corps of Engineers to regulate certain discharges to “navigable waters” or “waters of the United States.” 33 U.S.C.

§§ 1311(a) & 1362(7). The term “navigable waters” has been variously defined by the Corps over the years, but this Court redefined the term most recently in Rapanos v. United States, 547 U.S. 715 (2006). In Rapanos, the plurality defined “navigable waters” as Traditional Navigable Waters (capable of use in interstate commerce) and nonnavigable but relatively permanent rivers, lakes, and streams, as well as abutting wetlands, with a continuous surface water connection to Traditional Navigable Waters. Id. at 739-42. In a concurring opinion, Justice Kennedy opined that the Clean Water Act covered wetlands with a significant physical, biological, and chemical impact on Traditional Navigable Waters. Id. at 779. The Eighth Circuit has held the Corps can establish federal jurisdiction over wetlands under either the plurality’s “continuous surface water” test or Justice Kennedy’s “significant nexus” test. See United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009). In this case, the Corps relied on the “significant nexus” test.

The Clean Water Act is unique; it requires an expert “to determine if [it] even appl[ies] to you and your property.” Pet. App. at 20a (Kelly, J., concurring).

This is because the “reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by [federal] employees as wetlands covered by the Act....” Sackett v. E.P.A., 132 S. Ct. 1367, 1375 (2012) (Alito, J., concurring). Since the inception of the Act in 1972, “[t]he Corps has [] asserted jurisdiction over virtually any parcel of land containing a channel or conduit—whether man-made or natural, broad or narrow, permanent or ephemeral—through which rainwater or drainage may occasionally or intermittently flow.” Rapanos, 547 U.S. at 722. This implicates “the entire land area of the United States.” Id. “Any plot of land containing such a channel may potentially be regulated as a ‘water of the United States.’“ Id.

To provide some clarity to agency officials and the regulated public for this expansive assertion of jurisdiction, that Congress did not intend and could not have foreseen, the “Corps has authorized its district engineers to issue formal determinations concerning the applicability of the Clean Water Act... to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities.” 33 C.F.R. § 320.1(a)(6). A formal Approved Jurisdictional Determination, or JD, provides a sitespecific delineation of wetlands or other waters subject to regulation under the Clean Water Act, along with detailed physical, chemical, and biological data in support of the determination. 33 C.F.R. § 331.2. The regulations themselves declare a “determination pursuant to this authorization shall constitute a Corps final agency action.” 33 C.F.R. § 320.1(a)(6). The regulations also provide for Preliminary JD’s that are written indications that there may be “waters of the United States” on a parcel. 33 C.F.R. § 331.2. But the Corps states these JD’s are only “advisory in nature and may not be appealed.” Pet. Opening Brief at 25(a).

The Corps not only interprets jurisdictional “waters of the United States” expansively, the Corps interprets jurisdictional waters inconsistently. This is confirmed by a report from the General Accounting Office (GAO) cited by this Court in Rapanos, 547 U.S.

at 725. The report documents the Corps’ local districts “differ in how they interpret and apply the federal regulations when determining what wetlands and other waters fall within the [Clean Water Act’s] jurisdiction.” U.S. General Accounting Office, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction 3 (Feb. 2004). This is because “‘the definitions used to make jurisdictional determinations’ are deliberately left ‘vague.’” Rapanos, 547 U.S. at 727 (citation omitted).

In its effect, a Jurisdictional Determination requires property owners to: (1) abandon all use of the regulated portion of the land (often at ruinous cost);

(2) seek a potentially unnecessary permit (often at ruinous cost)1; or, (3) proceed with an otherwise lawful use of the land (risking ruinous fines2 and imprisonment).

Corps regulations authorize an administrative appeal of an Approved JD. The procedure for this appeal is the same for an appeal of a permit denial or a permit that is declined by the applicant. See 33 C.F.R. § 320.1(a)(2) (“A district engineer’s decision on an approved jurisdictional determination, a permit denial, or a declined individual permit is subject to an administrative appeal by the affected party in accordance with the procedures and authorities contained in 33 C.F.R. part 331.”).

An action brought in the federal courts is subject to the requirements of the Administrative Procedure Act (APA). The APA states “[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” 5 U.S.C. § 704. The general test for determining final agency action is often described as a two-prong analysis: “First, the action must mark the ‘consummation’ of the agency’s decisionmaking process.” And second, “the action must be one by which ‘rights or obligations have been determined,’” or from which “‘legal consequences will flow.’” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (citation omitted). Finally, the agency action must be According to this Court, the “average applicant for an individual permit [as in this case] spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide [more general] permit spends 313 days and $28,915—not counting costs of mitigation or design changes.” Rapanos, 547 U.S. at 719.

The Clean Water Act authorizes fines up to $37,500 a day. Pet.

Opening Brief at 9 n.4.

one for which there is no other remedy in court other than APA review.

This case involves a challenge to a formal Approved Jurisdictional Determination issued by the Corps after an administrative appeal. Respondent Hawkes argues the JD is invalid (as determined by a Corps Review officer) and the project site is not subject to the Clean Water Act under any relevant standard.

The Corps defends its JD on the basis the determination is not final agency action under Bennett and Respondent Hawkes has an adequate remedy in court; Hawkes can seek a permit, then decline the permit and seek redress in court for the contested Jurisdictional Determination. Or, if the permit is denied, Hawkes can challenge the need for a permit in court. In other words, Hawkes must go through the costly and time-consuming permit process before a court can determine whether Hawkes was required to go through the costly and time-consuming permit process in the first instance.

The Eighth Circuit Decision The trial court dismissed the challenge to the Jurisdictional Determination on a 12(b)(6) motion for lack of subject matter jurisdiction under the APA, However, the Eighth Circuit Court of Appeals held formal Approved Jurisdictional Determinations represent final agency action subject to immediate judicial review. According to the Eighth Circuit, the Jurisdictional Determination is conclusive as to federal jurisdiction under Sackett and Hawkes has no other

adequate remedy in court:

The Corps’s assertion that the Revised JD is merely advisory and has no more effect than an environmental consultant’s opinion ignores reality. “[I]n reality it has a powerful coercive effect.” Bennett, 520 U.S. at 169, 117 S. Ct. 1154. Absent immediate judicial review, the impracticality of otherwise obtaining review, combined with “the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case... leaves most property owners with little practical alternative but to dance to the EPA’s [or to the Corps’] tune.” “In a nation that values due process, not to mention private property, such treatment is unthinkable.” Sackett, 132 S. Ct.

at 1375 (Alito, J., concurring). We conclude that an Approved JD is a final agency action and the issue is ripe for judicial review under the APA.

Pet. App. at 16a-17a.

The court determined the test for APA finality is based on “practical considerations” and the Corps grossly understated the impact of a JD by “exaggerating the distinction between an agency order that compels affirmative action,” like the compliance order in Sackett, “and an order that prohibits a party from taking otherwise lawful action,” like the JD in this case. The Eighth Circuit found “[n]umerous Supreme Court precedents confirm that this is not a basis on which to determine whether ‘rights or obligations have been determined’ or that ‘legal consequences will flow’ from agency action.” Id. at 11a.

In her concurring opinion, Judge Kelly added:

In my view, the Court in Sackett was concerned with just how difficult and confusing it can be for a landowner to predict whether or not his or her land falls within CWA jurisdiction—a threshold determination that puts the administrative process in motion. This is a unique aspect of the CWA; most laws do not require the hiring of expert consultants to determine if they even apply to you or your property. This jurisdictional determination was precisely what the Court deemed reviewable in Sackett.

See Sackett, 132 S. Ct. at 1374-75 (Ginsburg, J., concurring). Accordingly, I concur in the judgment of the court.

Pet. App. at 20a-21a.

The judgment of the Eighth Circuit conflicts with Belle Co. v. U.S. Army Corps of Engineers, 761 F.3d 383 (5th Cir. 2014) (aka Kent Recycling now pending on petition in this Court, 14-493), and Fairbanks North Star Borough v. U.S. Army Corps of Engineers, 543 F.3d 586 (9th Cir. 2008). This Court granted certiorari to resolve this conflict.


The Property The property at issue (the Property) is located in New Maine Township, Marshal County, Minnesota, and contains organic peat3 found in wetland environments. JA at 13. In Minnesota, peat harvesting requires wetland replacement and restoration and is regulated under permits issued by the Minnesota Department of Natural Resources (MDNR). Id. The Property lies over 120 river miles from the nearest Traditional Navigable Water, the Red River of the North. Id. There is no continuous surface water connection between wetlands on the Property and a “water of the United States.” Id. A farm, a separate, shallow ditch dug for farming purposes in an area the Corps concedes is upland at the border of the farm most distant from the Property, and another sizable upland area, are all located between the Property and the area the Corps claims is a “Relatively Permanent Water.” Id. at 13-14.

Administrative Proceedings In October, 2006, Hawkes obtained an option to purchase the Property, subject to receiving approval to conduct peat harvesting operations on the Property. Id.

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