In my last post, I wrote about how the nationwide stay would likely remain in effect for WOTUS, the new rule written to redefine the meaning of the Waters of the United States under the Clean Water Act by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers. As I implied last month, if WOTUS survives the rule challenges, one effect may be that there are fewer Jurisdictional Determination (JDs).
If that happens, then it would make two cases that are being litigated by the Pacific Legal Foundation before the U.S. Supreme Court even more important. In U.S. Army Corps of Engineers v. Hawkes Co., Case No. 15-290 (2015), The Supreme Court will decide whether a JD can be challenged in court, or whether a landowner has to face the unenviable choice of having to spend tens of thousands of dollars to get a permit denied versus moving forward with a project without asking permission and risking fines and criminal penalties.
In Hawkes, a peat mining company wanted to mine in wetlands. The Corps issued a JD claiming jurisdiction, and issued the JD even after an administrative challenge. The peat company sued, but the district court dismissed, finding that the JD was not a challengeable final agency action. The Eighth Circuit reversed, splitting with the Ninth and Fifth Circuits.
The Eighth Circuit said that all final agency actions for which there is no other adequate judicial remedy must be able to be challenged. To be final, an agency’s action must be the end of the decisionmaking process, and it must have legal consequences for someone. Like every other court that has addressed the issue, the Eighth Circuit found that a JD was the end of a decisionmaking process. It disagreed with other courts, though, and found that the JD jad legal consequences, since the “prohibitive costs, risk, and delay of these alternatives to immediate judicial review” were inadequate substitutes. It held that the Supreme Court had mandated judicial review as a remedy in such cases in Sackett v. EPA, 132 S.Ct. 1367 (2012).
Another very similar case has been pending before the Supreme Court since late 2014. The Supreme Court initially denied certiorari of Kent Recycling Services, Inc. v. U.S. Army Corps of Engineers, Case No. 13-30262 (2014) (also known by the name of another plaintiff below, Belle Co., LLC). After the Hawkes decision by the Eighth Circuit, PLF moved for rehearing, which has yet to be decided.
Oral argument in Hawkes will be on March 30, 2016, so both cases should be decided soon. Ultimately, the Supreme Court will be decided a simple question: did it mean what it said in Sackett, that landowners must have a practical way to challenge an agency’s assertion of jurisdiction over their land?
