United States Army Corps of Engineers v. Hawkes Co., Inc.

Just as I’m starting to learn more about wetland law, the Supreme Court issues an opinion in United States Army Corps of Engineers v. Hawkes Co., Inc. The case turns on what is, to me, a technical question of administrative law, namely when does an agency determination become something that can be appealed? In the end, the resolution of this technical question does not appear, to me, to change wetland law all that much. But the opinion does shed some light on the challenges of wetland conservation within the United States legal framework.

The background of the case is pretty straightforward. Hawkes Co., Inc, and the other respondents are peat mining companies who wanted to mine peat from a rich fen in Minnesota. If these fens are “waters of the United States,” they would have to apply for a permit under Section 404 of the Clean Water Act. Remember that they need the permit not to mine peat from the wetland but to discharge dredged or fill material into the wetland, which I suppose we assume is unavoidable in a peat mining operation. Before applying for the Section 404 permit, the companies asked the Corps of Engineers for a determination as to whether the fens were waters of the United States. The Corps of Engineers decided and issued an “approved jurisdictional determination” (or a JD) that concluded that the fens had a “significant nexus” with the Red River of the North. As a result the companies would have to apply for a Section 404 permit and undertake all kinds of studies of the fen to comply with the permit.

The companies didn’t want to do that, so they appealed the permit finding to the Federal District Court who dismissed the case with the argument that the JD was not a “final agency action.” On appeal, the Eighth Circuit of the Court of Appeals reversed the decision, finding in favor of the companies. And thus the appeal by the Corps of Engineers to the Supreme Court here.

As I mentioned at the beginning, the case itself is a fairly technical and uncontroversial bit of administrative law. The opinion of the court hinges on whether the JD meets the two Bennett conditions

First, the action must mark the consummation of the agency’s decisionmaking process—it must not be of a merely tentative or interlocutory nature. And second, the action must be one by which rights or obligations have been determined, or from which legal consequences will flow, 520 U.S. 154 (1997).

The Supreme Court finds in the affirmative on both of these conditions. Obviously the JD is a consummation of the agency’s decisionmaking process because it has binding consequences for a period of at least five years. And such a JD determines whether the companies have to file for a permit and do all of the studies and such to comply with that permit, so there are some “rights and obligations.”

Case closed. And the Supreme Court thought so too, unanimously. Even with my amateur understanding of administrative law, I see nothing to dispute in the opinion of the court. If you read closely, you even get this gem from Chief Justice Roberts

Peat is an organic material that forms in waterlogged grounds, such as wet- lands and bogs. . . It is widely used for soil improvement and burned as fuel. It can also be used to provide structural support and moisture for smooth, stable greens that leave golfers with no one to blame but themselves for errant putts.

The other important bit from the opinions is the concurring opinion of Justice Kennedy, joined by Justices Alito and Thomas, which uses the opportunity to take a potshot at the Clean Water Act. Kennedy claims “the reach and systemic consequences of the Clean Water Act remain a cause for concern.” The reason for this concern is the apparent ability of the government to impose its will upon private property owners through the exercise of its Clean Water Act powers. Kennedy portrays the seemingly minor victory in the present case as an absolutely necessary weapon in the struggle for the due process rights of property owners.

The opinion refers to the 2015 Waters of the United States rule, which significantly expanded the definition of wetlands and which is currently stayed pending the resolution of litigation over it. The conflict over the Waters of the United States rule and the harsh Kennedy opinion here shows that our legal basis for wetland conservation is not nearly settled.

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