__ U.S. __ (2016), 15-290, United States Army Corps of Engineers v. Hawkes Co., Inc.

Docket Nº:15-290
Citation:__ U.S. __, 136 S.Ct. 1807, 195 L.Ed.2d 77, 84 U.S.L.W. 4339, 26 Fla.L.Weekly Fed. S 195
Opinion Judge:ROBERTS, CHIEF JUSTICE.
Party Name:UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER v. HAWKES CO., INC., ET AL
Attorney:Malcolm L. Stewart argued the cause for petitioner. M. Reed Hopper argued the cause for respondents.
Judge Panel: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...
Case Date:May 31, 2016
Court:United States Supreme Court
SUMMARY

Peat mining companies sought a Clean Water Act, 33 U.S.C. 1311(a), 1362, permit from the Army Corps of Engineers, to discharge material onto wetlands on property that they own and hope to mine. The Corps issued a jurisdictional designation (JD) stating that the property contained “waters of the United States” because its wetlands had a “significant nexus” to the Red River of the North, located... (see full summary)

 
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Page __

__ U.S. __ (2016)

136 S.Ct. 1807, 195 L.Ed.2d 77, 84 U.S.L.W. 4339, 26 Fla.L.Weekly Fed. S 195

UNITED STATES ARMY CORPS OF ENGINEERS, PETITIONER

v.

HAWKES CO., INC., ET AL

No. 15-290

United States Supreme Court

May 31, 2016

[136 S.Ct. 1808] Argued March 30, 2016.

DECISION BELOW: 782 F.3d 994

LOWER COURT CASE NUMBER: 13-3067

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Affirmed.

SYLLABUS

[136 S.Ct. 1809] [195 L.Ed.2d 82] The Clean Water Act regulates " the discharge of any pollutant" into " the waters of the United States." 33 U.S.C. § § 1311(a), 1362(7), (12). When property contains such waters, landowners who discharge pollutants without a permit from the Army Corps of Engineers risk substantial criminal and civil penalties, § § 1319(c), (d), while those who do apply for a permit face a process that is often arduous, expensive, and long. It can be difficult to determine in the first place, however, whether " waters of the United States" are present. During the time period relevant to this case, for example, the Corps defined that term to include all wetlands, the " use, degradation or destruction of which could affect interstate or foreign commerce." 33 CFR § 328.3(a)(3). Because of that difficulty, the Corps allows property owners to obtain a standalone " jurisdictional determination" (JD) specifying whether a particular property contains " waters of the United States." § 331.2. A JD may be either " preliminary," advising a property owner that such waters " may" be present, or " approved," definitively " stating the presence or absence" of such waters. Ibid. An " approved" JD is considered an administratively appealable " final agency action," § § 320.1(a)(6), 331.2, and is binding for five years on both the Corps and the Environmental Protection Agency, 33 CFR pt. 331, App. C; EPA, Memorandum of Agreement: Exemptions Under Section 404(F) of the Clean Water Act § VI-A.

Respondents, three companies engaged in mining peat, sought a permit from the Corps to discharge material onto wetlands located on property that respondents own and hope to mine. In connection with the permitting process, respondents obtained an approved JD from the [136 S.Ct. 1810] Corps stating that the property contained " waters of the United States" because its wetlands had a " significant nexus" to the Red River of the North, located some 120 miles away. After exhausting administrative remedies, respondents sought review of the approved JD in Federal District Court under the Administrative Procedure Act (APA), but the District Court dismissed for want of jurisdiction, holding that the revised JD was not a " final agency action for which there is no other adequate remedy in a court," 5 U.S.C. § 704. The Eighth Circuit reversed.

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, 117 S.Ct. 1154, 137 L.Ed.2d 281. 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 [195 L.Ed.2d 83] 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 33 CFR pt. 331, App. C. The Corps itself describes approved JDs as " final agency action." Id. § 320.1(a)(6). Pp. 5-6.

(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, 117 S.Ct. 1154, 137 L.Ed.2d 281. 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 33 U.S.C. § § 1319, 1365(a). Each of those effects is a legal consequence. It follows that an " affirmative" JD, like the one issued here, also has legal consequences: It deprives property owners of the five-year safe harbor that " negative" JDs afford. This conclusion tracks the " pragmatic" approach the Court has long taken to finality. Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 18 L.Ed.2d 681. Pp. 6-8.

(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 permit process and then seek judicial review, which, the Corps suggests, is what Congress envisioned. Neither alternative is adequate. 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, 87 S.Ct. 1507, 18 L.Ed.2d 681. And the permitting process is not only costly and lengthy, but also irrelevant to the finality of the approved JD and its suitability for judicial review. Furthermore, because the Clean Water Act makes no reference to standalone jurisdictional determinations, there is little basis for inferring anything from it concerning their reviewability. [136 S.Ct. 1811] Given " the APA's presumption of reviewability for all final agency action," Sackett v. EPA, 566 U.S. ___, ___, 132 S.Ct. 1367, 182 L.Ed.2d 367, 376, " [t]he mere fact" that permitting decisions are reviewable is insufficient to imply " exclusion as to other[ ]" agency actions, such as approved JDs, Abbott, 387 U.S. at 141, 87 S.Ct. 1507, 18 L.Ed.2d 681. Pp. 8-10.

782 F.3d 994, affirmed.

Malcolm L. Stewart argued the cause for petitioner.

M. Reed Hopper argued the cause for respondents.

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.

OPINION

[195 L.Ed.2d 84] ROBERTS, CHIEF JUSTICE.

The Clean Water Act regulates the discharge of pollutants into " the waters of the United States." 33 U.S.C. § § 1311(a), 1362(7), (12). Because it can be difficult to determine whether a particular parcel of property contains such waters, the U.S. Army Corps of Engineers will issue to property owners an " approved jurisdictional determination" stating the agency's definitive view on that matter. See 33 CFR § 331.2 and pt. 331, App. C (2015). The question presented is whether that determination is final agency action judicially reviewable under the Administrative Procedure Act, 5 U.S.C. § 704 .

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." 33 U.S.C. § § 1311(a), 1362(7), (12). During the time period relevant to this case, the U.S. Army Corps of Engineers defined the waters of the United States to include land areas occasionally or regularly saturated with water -- such as " mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, [and] playa lakes" -- the " use, degradation or destruction of which could affect interstate or foreign commerce." 33 CFR § 328.3(a)(3) (2012). The Corps has applied that definition to assert jurisdiction over " 270-to-300 million acres of swampy lands in the United States -- including half of Alaska and an area the size of California in the lower 48 States." Rapanos v.

United States, 547 U.S. 715, 722, 126 S.Ct. 2208, 165 L.Ed.2d [136 S.Ct. 1812] 159 (2006) (plurality opinion). 1

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 33 U.S.C....

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