U.S. Army Corps of Eng'rs v. Hawkes Co.
136 S. Ct. 1807
| SCOTUS | 2016Background
- The Clean Water Act prohibits discharge of pollutants into "waters of the United States" and requires Corps permits for discharges; permit processes can be lengthy and costly.
- The Army Corps issues jurisdictional determinations (JDs): "preliminary" (advisory) and "approved" (definitive); regulations describe approved JDs as "final agency action" and bind the Corps (and, by memorandum, EPA) for five years.
- Respondents (peat miners in Minnesota) applied for a Section 404 permit; the Corps issued an approved JD finding the property contained jurisdictional waters via a "significant nexus" to a river 120 miles away.
- Respondents exhausted administrative appeal, received a revised approved JD affirming jurisdiction, and sued under the Administrative Procedure Act (APA) seeking pre-enforcement review.
- The District Court dismissed for lack of final agency action; the Eighth Circuit reversed. The Supreme Court granted certiorari to decide whether an approved JD is final agency action reviewable under the APA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an approved jurisdictional determination is "final agency action" under Bennett v. Spear | Approved JDs are definitive, consummate Corps decisionmaking and have legal consequences; therefore final | Approved JDs are not final; they are part of the permitting process and lack immediately reviewable legal consequences | Held: Approved JDs are final agency action — they consummate decisionmaking and carry direct legal consequences (e.g., loss/creation of a five-year safe harbor) |
| Whether respondents have adequate alternative remedies precluding APA review (5 U.S.C. § 704) | Requiring landowners to either (1) illegally discharge and risk severe penalties or (2) endure costly, lengthy permitting is not an adequate alternative | Landowners can wait for enforcement or pursue permits and seek review after permit denial | Held: Alternatives are inadequate; awaiting enforcement risks serious penalties and permitting is onerous and does not cure JD finality |
| Legal effect of a negative vs. affirmative JD on liability and enforcement | Negative JDs provide a five‑year binding safe harbor against Corps/EPA civil enforcement and narrow potential plaintiffs/liability; affirmative JDs deny that safe harbor | Corps contends memorandum of agreement does not bind EPA in all cases and JDs lack binding litigation effect | Held: The Court treats the JD as creating direct legal consequences (safe harbor/loss thereof) sufficient for finality; some Justices note disputed status of memorandum but still find JDs definitive and reviewable |
| Whether the possibility the Corps may revise a JD based on new information makes it nonfinal | Revision possibility is common and does not render a definitive decision nonfinal | Corps argues revisability shows JDs are tentative | Held: Revisitability does not defeat finality; many agency decisions can be revised yet remain final for APA purposes |
Key Cases Cited
- Bennett v. Spear, 520 U.S. 154 (1997) (two-prong test for final agency action: consummation and legal consequences)
- Abbott Laboratories v. Gardner, 387 U.S. 136 (1967) (pragmatic approach to finality; pre-enforcement review permitted where serious consequences exist)
- Frozen Food Express v. United States, 351 U.S. 40 (1956) (orders without direct enforcement can nonetheless be reviewable when they have immediate practical impact)
- Rapanos v. United States, 547 U.S. 715 (2006) (discusses scope of "waters of the United States" and regulatory reach)
- Sackett v. EPA, 566 U.S. 120 (2012) (recognized landowners’ ability to obtain pre-enforcement review of agency compliance orders)
- Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49 (1987) (limits on citizen suits and civil liability for wholly past violations)
- National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967 (2005) (agency interpretations can be binding; revisability does not necessarily negate finality)