On May 31, 2016, the Supreme Court decided United States Army Corps of Engineers v. Hawkes Co., Inc. Hawkes Co. (Hawkes) applied to the Army Corps of Engineers (Corps) for a Clean Water Act permit to begin extracting peat from wetlands in northern Minnesota it was preparing to purchase. After attempting to discourage the purchase, and initiating various administrative processes, the Corps ultimately issued an Approved Jurisdictional Determination (Approved JD) asserting that the wetland contained waters of the United States, thereby creating a substantial barrier to development by Hawkes. Hawkes filed suit in federal district court to challenge the Approved JD, arguing that it conflicted with the U.S. Supreme Court’s interpretation of jurisdiction under the Clean Water Act. The district court dismissed the suit on the grounds that the Approved JD was not a “final agency action” as defined by the Administrative Procedure Act, and therefore not yet subject to judicial review. The U.S. Court of Appeals for the Eighth Circuit reversed that judgment and remanded the case, holding that an Approved JD did constitute final agency action ripe for judicial review.
The question before the Supreme Court was whether 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, constitutes “final agency action for which there is no other adequate remedy in a court," and is therefore subject to judicial review under the Administrative Procedure Act.
By a vote of 8-0, the Supreme Court affirmed the judgment of the Eighth Circuit. Chief Justice Roberts delivered the opinion of the Court, which held that an Approved JD is a final agency action judicially reviewable under the Administrative Procedure Act. The Chief Justice’s majority opinion was joined by Justices Kennedy, Thomas, Breyer, Alito, Sotomayor, and Kagan. Justice Kennedy filed a concurring opinion, in which Justices Thomas and Alito joined. Justice Kagan also filed a concurring opinion. Justice Ginsburg filed an opinion concurring in part and concurring in the judgment.
To discuss the case, we have Mark Miller, who is Managing Attorney, Atlantic Center, Pacific Legal Foundation.