U.S. Army Corps of Engineers v. Hawkes Co.
Issues
Under the Administrative Procedure Act, are jurisdictional determinations by the U.S. Army Corps of Engineers that property contains “waters of the United States” (as defined by the Clean Water Act) subject to immediate judicial review?
Peat miner Hawkes Co., Inc. owns property in Minnesota that contains wetlands. Hawkes requested a jurisdictional determination (“JD”) from the U.S. Army Corps of Engineers (the “Corps”) to determine if Hawkes could mine on new land. Under the Clean Water Act (“CWA”), the Corps can issue JDs to inform landowners if their land contains “waters of the United States” and are thus subject to certain licensure requirements. The Corps surveyed the property and issued an affirmative JD. The Supreme Court will decide whether JDs are final agency actions subject to judicial review under the Administrative Procedure Act (“APA”). To appeal an administrative decision under the APA, the decision must be final and impose legal obligations. The Corps asserts that JDs are not final agency actions because they are merely informational, and argues there are other options for landowners to obtain judicial review. Hawkes argues that other methods of review are prohibitively costly, and that JDs practically impose legal obligations on landowners. The Court’s decision could affect how often agencies defend their actions in court.
Questions as Framed for the Court by the Parties
Does the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, 33 U.S.C. 1362(7); see 33 U.S.C. 1251 et seq., constitute “final agency action for which there is no other adequate remedy in a court,” 5 U.S.C. 704, and is therefore subject to judicial review under the Administrative Procedure Act, 5 U.S.C. 701 et seq.?
Hawkes Co., Inc., is a mining company that excavates peat from wetland areas in Minnesota. Hawkes wanted to expand its operations to wetlands near its current operations. See Hawkes v. United States Army of Eng’rs, 782 F.3d 994, 998 (8th Cir. 2015). After purchasing an option on the new property, Hawkes met with the U.S.
Edited by
The authors would like to thank Jed Stiglitz, assistant professor of law and Jia Jonathan Zhu and Ruyin Ruby Ye Sesquicentennial Fellow, for his valuable insights about this case.