Hawkes Co. v. U.S. Army Corps of Eng'rs, No. 13–3067.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtLOKEN, Circuit Judge.
Citation782 F.3d 994
Docket NumberNo. 13–3067.
Decision Date10 April 2015
PartiesHAWKES CO., INC., et al., Plaintiffs–Appellants v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant–Appellee. American Farm Bureau Federation; National Association of Home Builders; National Mining Association; American Petroleum Institute; Utility Water Act Group; Foundation for Environmental and Economic Progress, Amici on Behalf of Appellants.

782 F.3d 994

HAWKES CO., INC., et al., Plaintiffs–Appellants
v.
UNITED STATES ARMY CORPS OF ENGINEERS, Defendant–Appellee.


American Farm Bureau Federation; National Association of Home Builders; National Mining Association; American Petroleum Institute; Utility Water Act Group; Foundation for Environmental and Economic Progress, Amici on Behalf of Appellants.

No. 13–3067.

United States Court of Appeals, Eighth Circuit.

Submitted: Dec. 11, 2014.
Filed: April 10, 2015.

Rehearing and Rehearing En Banc Denied July 7, 2015.


782 F.3d 996

Reed Hopper, argued, Damien Michael Schiff, on the brief, Sacramento, CA, for Plaintiffs–Appellants.

Robert Lundman, USDOJ, Environmental & Natural Resources Division, argued, Daniel R. Dertke, Jennifer S. Neumann, USDOJ, Environmental & Natural Resources Division, on the brief, Washington, DC, for Defendant–Appellee.

Deidre G. Duncan and Karma B. Brown, Ellen Steen, Andrew J. Turner, Katie Sweeney, Danielle Quist, Thomas J. Ward, Amanda E. Aspatore, Peter Tolsdorf, Kristy A.N. Bulleit, on the brief, Washington, DC, for amicus American Farm Bureau Federation, et al.

Before LOKEN, BRIGHT, and KELLY, Circuit Judges.

Opinion

LOKEN, Circuit Judge.

Hawkes Co., Inc. (Hawkes), wishes to mine peat from wetland property owned by two affiliated companies in northwestern Minnesota. The United States Army Corps of Engineers derailed that plan when it issued an Approved Jurisdictional Determination (“JD”) that the property constitutes “waters of the United States” within the meaning of the Federal Water Pollution Control Act (the “Clean Water Act” or “CWA”), and therefore appellants must have a permit to discharge dredged or fill materials into these “navigable waters.” See 33 U.S.C. §§ 1344(a), 1362(7). Appellants brought this action seeking judicial review of the JD and now appeal the district court's grant of the government's motion to dismiss their Amended Complaint. The district court concluded that an approved JD, though the consummation of the Corps' jurisdictional decisionmaking process, was not a “final agency action” within the meaning of the Administrative Procedure Act, 5 U.S.C. § 704. While the appeal was pending, a panel of the Fifth Circuit reached the same conclusion. Belle Co., LLC v. U.S. Army Corps of Eng'rs, 761 F.3d 383 (5th Cir.2014), cert. denied, ––– U.S. ––––, 135 S.Ct. 1548, ––– L.Ed.2d ––––, 83 U.S.L.W. 3291 (U.S. Mar. 23, 2015) (No. 14–493 ).

We conclude that both courts misapplied the Supreme Court's decision in Sackett v. EPA, ––– U.S. ––––, 132 S.Ct. 1367, 182 L.Ed.2d 367 (2012). Therefore, we reverse.

I.

The CWA requires a permit from the Corps to discharge dredged or fill materials into “navigable waters,” and a permit from the Environmental Protection Agency (or an authorized state agency) to discharge any “pollutant” into navigable waters. See 33 U.S.C. §§ 1311(a), 1342, 1344. The statute defines “navigable waters” to mean “the waters of the United States,”§ 1362(7). This broad definition prompted the Corps and the EPA to make “sweeping assertions of jurisdiction” over every stream, ditch, and drain that can be considered a tributary of, and every wetland that is adjacent to, traditional navigable waters. Rapanos v. United States, 547 U.S. 715, 726–727, 126 S.Ct. 2208, 165 L.Ed.2d 159 (2006) (plurality opinion).

782 F.3d 997

In United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 139, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), the Supreme Court held that the Corps may require permits for the discharge of fill material into wetlands adjacent to the “waters of the United States.” But in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 166, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001), the Court rejected the Corps' assertion of CWA jurisdiction over “nonnavigable, isolated, intrastate waters” where migratory birds are present. And in Rapanos, the Court concluded that the Corps' asserted jurisdiction over “wetlands based on adjacency to nonnavigable tributaries” went beyond its statutory authority. 547 U.S. at 782, 126 S.Ct. 2208 (Kennedy, J., concurring in the judgment). Because the Court's plurality and Justice Kennedy adopted different narrower tests to determine when wetlands are “waters of the United States,” we held “that the Corps has jurisdiction over wetlands that satisfy either ... test” in United States v. Bailey, 571 F.3d 791, 799 (8th Cir.2009).

The CWA imposes heavy civil and criminal penalties on a person who discharges into navigable waters without a required permit, or in violation of an issued permit. See 33 U.S.C. § 1319 ; Rapanos, 547 U.S. at 721, 126 S.Ct. 2208. When the Corps or the EPA finds that a person is violating the CWA's discharge restrictions, or a permit issued under the CWA, the agency “shall issue an order requiring such person to comply,” as in Sackett, or bring a civil enforcement action, as in Riverside Bayview Homes and Rapanos. See 33 U.S.C. §§ 1319(a)(3)(EPA) and 1344(s) (Corps). In Sackett, the EPA issued an administrative compliance order against a person for depositing fill into jurisdictional wetlands without a permit, ordering, among other remedies, that the site be restored. The EPA persuaded the lower courts the order was not subject to “pre-enforcement judicial review.” Applying the test for determining a final agency action in Bennett v. Spear, 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997), a unanimous Court held that the compliance order was a final agency action subject to immediate judicial review under the APA:

[I]t is hard for the Government to defend its claim that the issuance of the compliance order was just “a step in the deliberative process” when the agency rejected the Sacketts' attempt to obtain a hearing and when the next step will either be taken by the Sacketts (if they comply with the order) or will involve judicial, not administrative, deliberation (if the EPA brings an enforcement action). 132 S.Ct. at 1373.

The question in this case is whether the Court's application of its flexible final agency action standard in Sackett1 should also apply in this case, where appellants seek judicial review of an adverse JD without either completing the CWA permit process or risking substantial enforcement penalties by mining peat and discharging dredged or fill materials without a permit. That question requires a close look at the allegations in their Amended Complaint.

II.

In reviewing the district court's Rule 12(b)(6) dismissal, we accept as true the

782 F.3d 998

facts alleged in the Amended Complaint. Hawkes is in the business of mining and processing peat, a “wetland dependant” activity regulated in Minnesota through permits issued by the Minnesota Department of Natural Resources. Pierce Investment Co. and LPF Properties, LLC, have property interests in a 530–acre parcel in northwestern Minnesota that contains high quality peat near Hawkes's existing peat-mining operations. All three companies are owned by members of the Pierce family.

After obtaining an option to purchase the property subject to regulatory approval, Kevin Pierce and Hawkes met with Corps and MDNR representatives to discuss Hawkes's plan to expand its operations to include the property, which would extend the life of its peat mining ten to fifteen years. In December 2010, Hawkes applied to the Corps for a CWA permit. At a January 2011 meeting, Corps representatives urged Pierce to abandon his plan, emphasizing the delays, cost, and uncertain outcome of the permitting process. Pierce responded that he had an option to purchase and intended to proceed. In March, the Corps sent a letter advising it had made a “preliminary determination” the wetland is a regulated water of the United States and, “at a minimum,” an environmental assessment would be required. At an April meeting, a Corps representative told Pierce a permit would take years and the process would be very costly. During a site visit in early June, another Corps representative told a Hawkes employee that “he should start looking for another job.” In August, the Corps sent Hawkes a letter advising that nine additional information items costing more than $100,000 would be needed, including hydrological and functional resource assessments and an evaluation of upstream potential impacts. In November, Corps representatives met with the land owner and urged that he sell the property to a “wetlands bank,” advising that an environmental impact statement would likely be required, delaying the issuance of any permit for several years.

Appellants challenged the Corps' preliminary determination. In November, the Corps provided a “draft” JD concluding the property was connected by a “Relatively Permanent Water” (a series of culverts and unnamed streams) that flowed into the Middle River and then into the Red River of the North, a traditional navigable water some 120 miles away. Appellants' wetland consultant pointed out numerous errors in the analysis. Nonetheless, in February 2012 the Corps issued an Approved JD concluding the property was a water of the United States because of its “significant nexus” to the Red River. See 33 C.F.R. §§ 320.1(a)(6), 325.9....

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14 practice notes
  • Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, Civil No. 13–2262 (JRT/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 7 Septiembre 2017
    ...that have arisen in a variety of federal agency contexts in the past one hundred years." Hawkes Co. v. U.S. Army Corps of Eng'rs , 782 F.3d 994, 999 (8th Cir. 2015), aff'd , ––– U.S. ––––, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016). In Bennett v. Spear , the Supreme Court set forth a two-pa......
  • Temple v. Horses, CIV. 15-5062-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 19 Febrero 2016
    ...or obligations have been determined, or from which legal consequences will flow.Hawkes Co. v. United States Army Corps of Engineers , 782 F.3d 994, 999 (8th Cir.2015) (quoting Bennett v. Spear , 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ).If the BIA erred in its penalty a......
  • Marquette Cnty. Rd. Comm'n v. U.S. Envtl. Prot. Agency, File No. 2:15-CV-93
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 18 Mayo 2016
    ...plaintiff to apply for a permit or to undergo additional administrative proceedings. See Hawkes Co., Inc. v. U.S. Army Corps of Eng'rs , 782 F.3d 994 (8th Cir.2015) (Corps' jurisdictional determination that property contained water of the United States required the plaintiff to apply for CW......
  • Lewis v. United States, CIIVIL ACTION NO. 17-1644-JWD-RLB
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 25 Septiembre 2019
    ...in violation of constitutional rights was found to be an agency action). See also, Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994, 999 (8th Cir. 2015)("Jurisdictional determinations and permitting decisions are discrete agency actions..."). Based on the allegations......
  • Request a trial to view additional results
14 cases
  • Richland/Wilkin Joint Powers Auth. v. U.S. Army Corps of Eng'rs, Civil No. 13–2262 (JRT/LIB)
    • United States
    • United States District Courts. 8th Circuit. United States District Court of Minnesota
    • 7 Septiembre 2017
    ...that have arisen in a variety of federal agency contexts in the past one hundred years." Hawkes Co. v. U.S. Army Corps of Eng'rs , 782 F.3d 994, 999 (8th Cir. 2015), aff'd , ––– U.S. ––––, 136 S.Ct. 1807, 195 L.Ed.2d 77 (2016). In Bennett v. Spear , the Supreme Court set forth a two-pa......
  • Temple v. Horses, CIV. 15-5062-JLV
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 19 Febrero 2016
    ...or obligations have been determined, or from which legal consequences will flow.Hawkes Co. v. United States Army Corps of Engineers , 782 F.3d 994, 999 (8th Cir.2015) (quoting Bennett v. Spear , 520 U.S. 154, 177–78, 117 S.Ct. 1154, 137 L.Ed.2d 281 (1997) ).If the BIA erred in its penalty a......
  • Marquette Cnty. Rd. Comm'n v. U.S. Envtl. Prot. Agency, File No. 2:15-CV-93
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 18 Mayo 2016
    ...plaintiff to apply for a permit or to undergo additional administrative proceedings. See Hawkes Co., Inc. v. U.S. Army Corps of Eng'rs , 782 F.3d 994 (8th Cir.2015) (Corps' jurisdictional determination that property contained water of the United States required the plaintiff to apply for CW......
  • Lewis v. United States, CIIVIL ACTION NO. 17-1644-JWD-RLB
    • United States
    • United States District Courts. 5th Circuit. Middle District of Louisiana
    • 25 Septiembre 2019
    ...in violation of constitutional rights was found to be an agency action). See also, Hawkes Co., Inc. v. U.S. Army Corps of Engineers, 782 F.3d 994, 999 (8th Cir. 2015)("Jurisdictional determinations and permitting decisions are discrete agency actions..."). Based on the allegations......
  • Request a trial to view additional results

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