UNITED STATES ARMY CORPS OF ENGINEERS v. HAWKES CO., INC., ET AL.
No. 15-290
SUPREME COURT OF THE UNITED STATES
May 31, 2016
578 U.S. ___ (2016)
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES ARMY CORPS OF ENGINEERS v. HAWKES CO., INC., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No. 15-290. Argued March 30, 2016—Decided May 31, 2016
The Clean Water Act regulates “the discharge of any pollutant” into “the waters of the United States.”
Held: The Corps’ approved JD is a final agency action judicially reviewable under the APA. Pp. 5–10.
(a) In general, two conditions must be satisfied for an agency action to be “final” under the APA: “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, 177–178. Pp. 5–8.
(1) An approved JD satisfies Bennett‘s first condition. It clearly “mark[s] the consummation” of the Corps’ decisionmaking on the question whether a particular property does or does not contain “waters of the United States.” It is issued after extensive factfinding by the Corps regarding the physical and hydrological characteristics of the property, see U. S. Army Corps of Engineers, Jurisdictional Determination Form Instructional Guidebook 47–60, and typically remains valid for a period of five years, see
(2) The definitive nature of approved JDs also gives rise to “direct and appreciable legal consequences,” thereby satisfying Bennett‘s second condition as well. 520 U. S., at 178. A “negative” JD—i.e., an approved JD stating that property does not contain jurisdictional waters—creates a five-year safe harbor from civil enforcement proceedings brought by the Government and limits the potential liability a property owner faces for violating the Clean Water Act. See
(b) A “final” agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court. The Corps contends that respondents have two such alternatives: They may proceed without a permit and argue in a Government enforcement action that a permit was not required, or they may complete the
782 F. 3d 994, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which KENNEDY, THOMAS, BREYER, ALITO, SOTOMAYOR, and KAGAN, JJ., joined. KENNEDY, J., filed a concurring opinion, in which THOMAS and ALITO, JJ., joined. KAGAN, J., filed a concurring opinion. GINSBURG, J., filed an opinion concurring in part and concurring in the judgment.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 15-290
UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
The Clean Water Act regulates the discharge of pollutants into “the waters of the United States.”
I
A
The Clean Water Act prohibits “the discharge of any pollutant” without a permit into “navigable waters,” which it defines, in turn, as “the waters of the United States.”
It is often difficult to determine whether a particular piece of property contains waters of the United States, but there are important consequences if it does. The Clean Water Act imposes substantial criminal and civil penalties for discharging any pollutant into waters covered by the Act without a permit from the Corps. See
The Corps specifies whether particular property con-
B
Respondents are three companies engaged in mining peat in Marshall County, Minnesota. Peat is an organic material that forms in waterlogged grounds, such as wetlands and bogs. See Xuehui & Jinming, Peat and Peatlands, in 2 Coal, Oil Shale, Natural Bitumen, Heavy Oil and Peat 267–272 (G. Jinsheng ed. 2009) (Peat and Peatlands). It is widely used for soil improvement and burned as fuel. Id., at 277. 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. See Monteith & Welton, Use of Peat and Other Organic Materials on Golf Courses, 13 Bulletin of the United States Golf Association Green Section 90, 95–100 (1933). At the same time, peat mining can have significant environmental and ecological impacts, see Peat and Peatlands 280–281, and therefore is regulated by both federal and state environmental protection agencies, see,
Respondents own a 530-acre tract near their existing mining operations. The tract includes wetlands, which respondents believe contain sufficient high quality peat, suitable for use in golf greens, to extend their mining operations for 10 to 15 years. App. 8, 14–15, 31.
In December 2010, respondents applied to the Corps for a Section 404 permit for the property. Id., at 15. A Section 404 permit authorizes “the discharge of dredged or fill material into the navigable waters at specified disposal sites.”
In February 2012, in connection with the permitting process, the Corps issued an approved JD stating that the property contained “water of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located some 120 miles away. Id., at 13, 18, 20. Respondents appealed the JD to the Corps’ Mississippi Valley Division Commander, who remanded for further factfinding. On remand, the Corps reaffirmed its original conclusion and issued a revised JD to that effect. Id., at 18–20; App. to Pet. for Cert. 44a–45a.
Respondents then sought judicial review of the revised JD under the Administrative Procedure Act (APA),
II
The Corps contends that the revised JD is not “final agency action” and that, even if it were, there are adequate alternatives for challenging it in court. We disagree at both turns.
A
In Bennett v. Spear, 520 U. S. 154 (1997), we distilled from our precedents two conditions that generally must be satisfied for agency action to be “final” under the APA. “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.” Id., at 177–178 (internal quotation marks and citation omitted).2
The Corps does not dispute that an approved JD satisfies the first Bennett condition. Unlike preliminary JDs—which are “advisory in nature” and simply indicate that “there may be waters of the United States” on a parcel of property,
The Corps may revise an approved JD within the five-year period based on “new information.” 2005 Guidance Letter §1(a), at 1. That possibility, however, is a common characteristic of agency action, and does not make an otherwise definitive decision nonfinal. See Sackett v. EPA, 566 U. S. 120, ___ (2012); see also National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 981 (2005). By issuing respondents an approved JD, the Corps for all practical purposes “has ruled definitively” that respondents’ property contains jurisdictional waters. Sackett, 566 U. S., at ___ (GINSBURG, J., concurring) (slip op., at 1).
The definitive nature of approved JDs also gives rise to “direct and appreciable legal consequences,” thereby satisfying the second prong of Bennett. 520 U. S., at 178. Consider the effect of an approved JD stating that a party‘s property does not contain jurisdictional waters—a “negative” JD, in Corps parlance. As noted, such a JD will generally bind the Corps for five years. See
It follows that affirmative JDs have legal consequences as well: They represent the denial of the safe harbor that negative JDs afford. See
This conclusion tracks the “pragmatic” approach we have long taken to finality. Abbott Laboratories v. Gardner, 387 U. S. 136, 149 (1967). For example, in Frozen Food Express v. United States, 351 U. S. 40 (1956), we considered the finality of an order specifying which commodities the Interstate Commerce Commission believed were exempt by statute from regulation, and which it
B
Even if final, an agency action is reviewable under the APA only if there are no adequate alternatives to APA review in court.
Neither alternative is adequate. As we have long held, parties need not await enforcement proceedings before challenging final agency action where such proceedings carry the risk of “serious criminal and civil penalties.” Abbott, 387 U. S., at 153. If respondents discharged fill material without a permit, in the mistaken belief that their property did not contain jurisdictional waters, they
Nor is it an adequate alternative to APA review for a landowner to apply for a permit and then seek judicial review in the event of an unfavorable decision. As Corps officials indicated in their discussions with respondents, the permitting process can be arduous, expensive, and long. See Rapanos, 547 U. S., at 721 (plurality opinion). On top of the standard permit application that respondents were required to submit, see
The Corps nevertheless argues that Congress made the “evident[]” decision in the Clean Water Act that a coverage determination would be made “as part of the permit-
Finally, the Corps emphasizes that seeking review in an enforcement action or at the end of the permitting process would be the only available avenues for obtaining review “[i]f the Corps had never adopted its practice of issuing standalone jurisdictional determinations upon request.” Reply Brief 3; see also id., at 4, 23. True enough. But such a “count your blessings” argument is not an adequate rejoinder to the assertion of a right to judicial review under the APA.
The judgment of the Court of Appeals for the Eighth Circuit is affirmed.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
No. 15-290
UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
JUSTICE KENNEDY, with whom JUSTICE THOMAS and JUSTICE ALITO join, concurring.
My join extends to the Court‘s opinion in full. The following observation seems appropriate not to qualify what the Court says but to point out that, based on the Government‘s representations in this case, the reach and systemic consequences of the Clean Water Act remain a cause for concern. AS JUSTICE ALITO has noted in an earlier case, the Act‘s reach is “notoriously unclear” and the consequences to landowners even for inadvertent violations can be crushing. See Sackett v. EPA, 566 U. S. 120 (2012) (concurring opinion) (slip op., at 1).
An approved Jurisdictional Determination (JD) gives a landowner at least some measure of predictability, so long as the agency‘s declaration can be relied upon. Yet, the Government has represented in this litigation that a JD has no legally binding effect on the Environmental Protection Agency‘s (EPA) enforcement decisions. It has stated that the memorandum of agreement between the EPA and the Army Corps of Engineers, which today‘s opinion relies on, does not have binding effect and can be revoked or amended at the Agency‘s unfettered discretion. Reply Brief 12; Tr. of Oral Arg. 16. If that were correct, the Act‘s ominous reach would again be unchecked by the limited relief the Court allows today. Even if, in an ordinary case,
The Act, especially without the JD procedure were the Government permitted to foreclose it, continues to raise troubling questions regarding the Government‘s power to cast doubt on the full use and enjoyment of private property throughout the Nation.
SUPREME COURT OF THE UNITED STATES
No. 15-290
UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
JUSTICE KAGAN, concurring.
I join the Court‘s opinion in full. I write separately to note that for me, unlike for JUSTICE GINSBURG, see post, at 1 (opinion concurring in part and concurring in judgment), the memorandum of agreement between the Army Corps of Engineers and the Environmental Protection Agency is central to the disposition of this case. For an agency action to be final, “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, 178 (1997). As the Court states, the memorandum of agreement establishes that jurisdictional determinations (JDs) are “binding on the Government and represent the Government‘s position in any subsequent Federal action or litigation concerning that final determination.” Memorandum of Agreement §§IV–C–2, VI–A; ante, at 6 (majority opinion). A negative JD thus prevents the Corps and EPA—the two agencies with authority to enforce the Clean Water Act—from bringing a civil action against a property owner for the JD‘s entire 5-year lifetime. Ante, at 6–7, and n. 3. The creation of that safe harbor, which binds the agencies in any subsequent litigation, is a “direct and appreciable legal consequence[]” satisfying the second prong of Bennett. 520 U. S., at 178.
SUPREME COURT OF THE UNITED STATES
No. 15-290
UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER v. HAWKES CO., INC., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
[May 31, 2016]
JUSTICE GINSBURG, concurring in part and concurring in the judgment.
I join the Court‘s opinion, save for its reliance upon the Memorandum of Agreement between the Army Corps of Engineers and the Environmental Protection Agency. Ante, at 6–7, and n. 3 (construing the memorandum to establish that Corps jurisdictional determinations (JDs) are binding on the Federal Government in litigation for five years). The Court received scant briefing about this memorandum, and the United States does not share the Court‘s reading of it. See Reply Brief 12, n. 3 (memorandum “does not address mine-run Corps jurisdictional determinations of the sort at issue here“); Tr. of Oral Arg. 7 (same); id., at 9 (reading of the memorandum to establish that JDs have binding effect in litigation does not “reflec[t] current government policy“). But the JD at issue is “definitive,” not “informal” or “tentative,” Abbott Laboratories v. Gardner, 387 U. S. 136, 151 (1967), and has “an immediate and practical impact,” Frozen Food Express v. United States, 351 U. S. 40, 44 (1956). See also ante, at 7–8.* Accordingly, I agree with the Court
that the JD is final.